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THE  CONDUCT  OP 
AMERICAN  FOREIGN  RELATIONS 


THE  CENTUEY 
POLITICAL  SCIENCE  SERIES 

Edited  by 

FBEDERIC  A.  OGG, 

University  of  Wisconsin. 


Introduction  to  American  Government.  By  Frederic 
^-  Og&>  University  of  Wisconsin,  and  P.  Orman 
Ray,  Northwestern  University. 

American  Parties  and  Elections.  By  Edward  M. 
Sait,  University  of  California. 

State  Government  in  the  United  States.  By  Walter 
F.  Dodd,  Chicago,  Illinois. 

Constitutional  Law  op  the  United  States.  By  Ed- 
ward S.  Corwin,  Princeton  University. 

Constitutional  History  of  the  United  States.  By 
Andrew  C.  McLaughlin,  University  of  Chicago. 

The  Conduct  of  American  Foreign  Relations.  By 
John  M.  Mathews,  University  of  Illinois. 

Outlines  of  World  Politics.  By  Herbert  Adams  Gib- 
bons, Princeton,  New  Jersey.    , 

European  Diplomacy,  1914-1921.  By  Charles  Seymour, 
Yale  University. 

Introduction  to  the  Study  of  International  Organi- 
zation. By  Pitman  B.  Potter,  University  of  Wiscon- 
sin. 

Latin  America  and  the  United  States.  By  Graham 
H.  Stuart,  University  of  Wisconsin. 

Recent  and  Contemporary  Political  Theory.  By 
Francis  W.  Coker,  Ohio  State  University. 

Elements  of  International  Law.  By  Charles  G.  Fen- 
wick,  Bryn  Mawr  College. 


Other  volumes  to  6e  arranged. 


THE'CONDUCT  OF 
AMERICAN  FOREIGN  RELATIONS' 


BY 


JOHN  MABRY  MATHEWS,  Ph.D. 

ASSOCIATE   PROFESSOR   OF   POLITICAL    SCIENCE    IN    THE 

UNIVERSITY  OF  ILLINOIS ;  AUTHOR  OF  ' '  PRINCIPLES 

OF  AMERICAN  STATE  ADMINISTRATION  '  * 


y»^^^wi<« 


NEW  YORK 

THE  CENTURY  CO. 

1922 


Copyright,  1922,  by 
The  Centuey  Co. 


Printed  in  U.  S.  A. 


TO 
MY  PARENTS 


4CG952 


PEEFACE 

Despite  its  growing  importance  as  a  world  power,  the 
United  States  was  still,  at  the  outbreak  of  the  Great  War, 
largely  self-centered  and  provincial.  Speaking  broadly, 
this  condition  no  longer  exists;  notwithstanding  a  certain 
reaction  against  world  policies,  people  are  more  interested 
today  than  ever  before  in  all  that  concerns  our  foreign 
relations.  Most  of  the  books  dealing  with  the  foreign 
affairs  of  the  country  have  treated  the  subject  historically, 
and  have,  therefore,  placed  the  emphasis  on  events,  often 
presented  in  chronological  sequence.  The  aim  in  the  present 
work  has  been,  rather,  to  discuss  the  subject  from  the 
standpoint  of  political  science.  Hence  the  treatment  is 
topical  rather  than  chronological;  diplomatic  events  as 
such  are  introduced  only  incidentally  to  illustrate  the  prin- 
ciples and  problems  considered.  Emphasis  is  placed  upon 
the  organization  of  the  government  for  the  conduct  of  for- 
eign relations,  the  control  exerted  by  its  various  branches 
therein,  and  the  methods  of  procedure  followed.  To  some 
extent  these  matters  are  regulated  by  the  written  consti- 
tution and  laws.  But  they  are  also  governed  in  part  by 
unwritten  ** conventions.''  Accordingly,  this  book  is  a 
study  in  both  constitutional  law  and  constitutional  prac- 
tice, as  affecting  this  phase  of  our  governmental  organ- 
ization and  activity.  In  this  field,  as  in  others,  law  and 
practice  are  slowly,  but  constantly,  changing.  Particular 
attention,  therefore,  is  given  to  the  important  developments 
of  the  past  few  years,  which  have  thrown  much  new  light 
upon  different  phases  of  our  foreign  relations. 

The  present  work  is  the  outgrowth,  in  part,  of  an  under- 


viii  PREFACE 

graduate  course  on  the  subject  which  I  have  given  for 
several  years  at  the  University  of  Illinois  and,  in  part,  of 
a  series  of  lectures  which  I  delivered  during  the  winter  of 
1919-20  before  the  graduate  students  in  political  science 
at  the  Johns  Hopkins  University.  I  am  deeply  indebted  to 
my  former  colleague.  Professor  E.  S.  Corwin,  of  Princeton 
University,  whose  excellent  essay,  The  President's  Con- 
trol of  Foreign  Relations,  has  been  of  great  service.  My 
thanks  are  due  also  to  Professors  W.  W.  Willoughby,  of 
the  Johns  Hopkins  University,  and  P.  B.  Potter,  of  the 
University  of  Wisconsin,  for  helpful  suggestions;  while 
to  Professor  Frederic  A.  Ogg,  the  editor  of  the  series  in 
which  the  volume  appears,  I  am  under  the  deepest  obliga- 
tion for  invaluable  criticism  and  advice,  which  have  im- 
proved the  quality  of  the  book  throughout.  For  the  vol- 
ume's imperfections,  however,  I  am,  of  course,  alone  re- 
sponsible. 

The  substance  of  Chapters  11,  III,  and  XVII  has  ap- 
peared in  the  Michigan  Law  Review  for  May,  1919,  and 
May  and  June,  1921,  and  I  am  grateful  to  the  editors  and 
pubhshers  of  that  journal  for  permission  to  reprint  the 
articles  in  this  volume. 

J.  M.  Mathews 
University  of  Illinois, 
August  1,  1921. 


CONTENTS 

OHAPTBB  riQB 

I    The  Basis  and  Modes  of  Control  .  K     .     .     ...  3 

^     Presidential  Initiative 4 

Congressional  Initiative  and  Influence 13 

Congressional  Requests  for  Information 17 

nternational  Communication 21 

II    The  States  and  Foreign  Relations 28 

Direct   Influence 29 

Indirect  Influence  . 33 

III    The  Department  of  State 38 

Historical  Development "38 

The  Office  of  Secretary 41 

Departmental  Organization 43 

Legal  Functions 46 

Recent  Reorganization 47 

Relations  with  Congress 50  > 

rV    Diplomatic  Intercourse:  Personnel 53 

^        Creation  of  Diplomatic  Offices 53 

Appointment  of  Diplomatic  Representatives 55 

Qualifications  of  Diplomatic  Officers 60 

Presidential  Appointment  Without  Senatorial  Confirmation  66 

Recess  Appointments 76 

V    Diplomatic  Intercourse  :  Procedure  ........  79 

4      Participation  in  International  Conferences 79 

Instructions  to  Diplomatic  Representatives 85 

Reception  of  Diplomatic  Envoys 92 

Termination  of  Diplomatic  Missions 93 

The  Courts  and  Diplomatic  Envoys 95 

VI    The  Consular  Service 97 

Historical  Development 97 

Grades  of  Consular  Officers 100 

Appointment,  Promotion,  and  Removal 103 

Powers  and  Duties 106 

Extraterritoriality 110 

Privileges  and  Immunities 112 

ix 


X  CONTENTS 

CHAPTER  PAOB 

VII    The  Power  of  Recognition 115 

*^     Congressional  Influence  upon  Recognition 117 

Executive  Control  over  Recognition 123 

The  Courts  and  Recognition 12  if 

VIII    The  Treaty-Making  Power  :  General  Principles  ...  130 

The  Treaty  Clause  in  the  Constitutional  Convention  .     .     .  130 

Stages  in  the  Process  of  Treaty-making 134 

Precedents  Established  by  Washington 140 

Fundamental  Conditions  of  Treaty-making 143 

IX    The  Treaty-Making  Power:  Practical  Operation     .     .  149 

Treaties  in  the  Senate 152 

Senate  Amendments  and  Reservations 154 

Open  Executive  Sessions 161 

•-  Presidential  Influence  over  Senatorial  Action 163 

Conclusions 165 

X    The  Agreement-Making  Power 168 

Kinds  of  Agreements 169 

Agreements  under  Congressional  Authorization  ....  171 

Agreements  under  Treaty  Authorization 174 

Simple  Executive  Agreements .  177 

Conclusion 180 

XI  *"  The  Enforcement  of  Treaties 184 

Judicial  Enforcement  .      , 185 

The  Courts  and  Political  Questions 190 

Executive  Enforcement 193 

Congressional  Enforcement 196 

The  Function  of  the  House  of  Representatives  ....  201 

Treaties  Affecting  the  Revenue  Laws  .......  206 

XII    The  Interpretation  of  Treaties 2131, 

Interpretation  by  the  Political  Departments 213 

Judicial   Interpretation 218 

Treaty  Specification  of  Method  of  Interpretation     .     .     .  220 

XIII    The  Termination  of  Treaties 223 

Termination  by  Executive  Action 225 

Treaty  Specification  of  Method  of  Termination  ....  228 

Termination  on  Congressional  Authorization 231 

Treaties  Containing  no  Provision  for  Termination   .      .      .  236 

Congressional  Termination  of  Treaties  as  Law  of  the  Land  237 

Termination   by   Adverse  Breach 239 

The  Courts  and  Political  Questions .  241 

Congressional  Termination  Through  Confiicting  Legislation  243 

Termination  Through  Legislative  Implication     ....  248 


CONTENTS  xi 

CHAPTER  HOB 

Termination  of  Treaties  to  which  the  United  States  is  not 

a  Party 249 

Conclusions 250 

XIV    Neutrality  and  the  Maintenance  op  Peac?e  ....  257 

Arbitration 260 

Neutrality 263 

XV    Forcible  Measures  Short  of  War 272 

Simple  Presidential  Action 276 

Presidential  Action  with  Congressional  Concurrence  .     .     .  280 

Presidential  Action  under  Treaty  Authorization  ....  283 

Latin-American   Protectorates 286 

Summary   and   Conclusion .  287 

XVI    The  Beginning  of  War 294 

The  Policy  of  Armed  Neutrality 295 

Classification  of  Armed  Conflicts 298 

The  Process  of  Declaring  War 299 

The  Specification  of  Causes 310 

Presidential  Approval  of  Declarations  of  War  ....  315 

XVII    The  Termination  of  War 319 

The  Cessation  of  Hostilities 319 

Termination  by  Treaty  of  Peace   .     .     ". 324 

Termination  by  Conquest  or  Cessation  of  Hostilities  .  ••  .  325 

The  Congressional  Peace  Resolution t  328 

Termination  by  Presidential  Proclamation 336 

XVIII    Conclusion 339 

Table  of  Cases  Cited 343 

Index 347 


THE  CONDUCT  OF 
AMERICAN  FOREIGN  RELATIONS 


THE  CONDUCT  OF 
AMERICAN  FOREIGN  RELATIONS 

CHAPTER  I 

THE  BASIS  AND  MODES  OF  CONTROL 

A  NATION'S  foreign  relations  may  be  considered  from 
two  main  points  of  view:  (1)  the  formation  and  con- 
tent of  policies,  and  (2)  administration,  ix.,  the  agencies 
and  modes  of  conduct  and  control.  From  the  first  point  of 
view,  the  chief  matters  of  concern  are  the  interplay  of 
forces  which  gives  form  to  foreign  policies,  together  with 
the  nature,  persistence,  and  readaptations  of  these  policies. 
From  the  second  point  of  view,  interest  centers  in  the 
machinery  employed  in  the  carrying  on  of  foreign  relations, 
in  the  methods  pursued,  and  especially  in  the  relative  de- 
grees of  control  exercised  by  the  several  organs  of  govern- 
ment over  the  different  processes  involved.  Whether  the 
United  States  shall  be  at  war  or  at  peace ;  whether  it  shall 
recognize  a  revolutionary  government  in  Mexico,  or  use  its 
influence  to  maintain  the  territorial  integrity  of  China; 
whether  it  shall  become  a  member  of  a  general  association 
of  nations — these  are  questions  of  policy.  Public  opinion 
may  demand  war,  or  recognition,  or  a  firm  stand  in  the 
Far  East,  or  membership  in  an  association.  But  not  until 
the  appropriate  governmental  authorities  take  the  neces- 
sary action  can  this  opinion  be  carried  into  effect.  Who 
shall  interpret,  who  shall  lead,  public  opinion  in  determin- 
ing the  policies  to  be  pursued,  and  who  shall  execute  the 
policies  thus  arrived  at — these  are  questions  of  administra- 

3 


4      THE  eONDpCT  OP.  AMERICAN  FOREIGN  RELATIONS 

tion  and  control.  In  some  instances,  as  we  shall  see,  one 
branch  of  government  determines  what  the  policy  shall  be, 
while  another  executes  it.  But  as  a  rule  the  same  authori- 
ties determine  the  policy  and  also  execute  it. 

In  this  volume  we  are  concerned  primarily  with  matters 
pertaining  to  the  conduct  and  control  of  foreign  relations, 
and  only  incidentally  with  the  content  of  foreign  policies. 

On  account  of  the  largely  separate  and  independent  posi- 
tion assigned  to  the  different  organs  and  departments  of 
government,  the  conduct  of  foreign  relations  in  the  United 
States  is  unusually  complicated.  In  other  countries,  as  a 
rule,  this  function  belongs  almost  entirely  to  the  executive. 
The  adoption  of  such  a  plan  here,  however,  was  considered 
dangerous  by  a  majority  of  the  members  of  the  Constitu- 
tional Convention  of  1787,  as  it  seemed  to  savor  too  muchs 
of  monarchy.  In  the  absence  of  any  distinct  executive 
department,  foreign  relations  prior  to  1789  were  managed 
by  the  Continental  Congress  and  the  Congress  of  the  Con- 
federation; and  this  created  a  precedent  for  the  handling 
of  such  matters  by  the  legislative  department.  Experience 
under  the  Articles,  however,  showed  that  simple  Congres- 
sional control  of  foreign  relations  was  undesirable.  Ac- 
cordingly, the  framers  of  the  Constitution  provided  for  a 
division  of  this  control  between  the  President,  the  Senate, 
and  Congress.  The  courts,  in  construing  the  laws,  might 
also  incidentally  affect  foreign  relations. 

PRESIDENTIAL   INITIATIVE 

The  power  of  taking  the  initiative  in  the  formulation  and 
announcement  of  foreign  policies  is  not  expressly  conferred 
by  the  Constitution  upon  any  particular  organ  of  the  Gov- 
ernment. That  this  power  is  largely  in  the  hands  of  the 
President  is,  however,  inferable  from  the  constitutional 
provisions  expressly  vesting  in  him  the  power  to  nominate 
and  to  receive  diplomatic  representatives,  to  participate  in 


THE  BASIS  AND  MODES  OF  CONTROL      6 

the  mating  of  treaties,  and  to  give  Congress  information 
upon  the  state  of  the  Union.  Not  only  the  language  of  the 
Constitution,  but  also  the  practice  of  more  than  a  century, 
establishes  the  principle  that  this  power  rests  mainly  in  the 
President.  Generally,  although  not  invariably,  the  power 
of  initiative  and  the  power  of  control  go  together.  The 
President,  then,  is  in  primary  control  of  our  foreign  rela- 
tions, and  he  exercises  full  authority  throughout  this  entire 
field,  except  in  so  far  as  the  Constitution  expressly  admits 
other  agencies  to  a  share  in  this  authority,  as  is  seen  in 
the  participation  of  the  Senate  in  the  making  of  treaties 
and  the  appointment  of  diplomatic  representatives  and  of 
Congress  in  a  declaration  of  war.^ 

The  power  of  taking  the  initiative  in  formulating  foreign 
policies  is  one  which  the  President  has  frequently  exercised. 
Washington's  farewell  advice  to  his  fellow-citizens  **to 
steer  clear  of  permanent  alliance  with  any  portion  of  the 
foreign  world,''  and  the  practical  application  of  his  policy 
of  aloofness  from  ^*  controversies,  the  causes  of  which  are 
essentially  foreign  to  our  concerns"  in  the  issuance  of  his 
neutrality  proclamation  of  1793  have  had  a  potent  influence 
throughout  our  history.  The  best-known  example,  however, 
of  Presidential  formulation  of  foreign  policy  is  the  Doc- 
trine of  Monroe,  which  was  promulgated  in  his  annual 
message  to  Congress  in  1823.^  The  principle  laid  down  by 
Monroe  has  been  elaborated  and  expanded  to  meet  new  con- 
ditions in  the  official  utterances  of  later  Presidents,  includ- 
ing Polk,  Grant,  Hayes,  Harrison,  Cleveland  and  Roosevelt. 
In  the  words  and  actions  of  the  last  two  Presidents  men- 
tioned, the  Monroe  Doctrine  assumed  a  more  positive  and 

*  Cf .  the  argument  of  Hamilton  in  1793  regarding  the  power  of  the  President 
to  issue  a  proclamation  of  neutrality.  WorTcs  (Lodge  ed.),  IV,  135  ff.  See 
also  Butler,  Treaty-MaJcmg  Power,  II,  357-60. 

'  It  is  frequently  stated  that  the  person  most  concerned  in  the  authorship  of 
the  doctrine  was  Monroe's  secretary  of  state,  John  Quincy  Adams.  Even  if 
true,  however,  this  would  not  affect  the  fact  that  the  secretary  was  acting  as 
the  agent  of  the  President,  and  that  the  latter  assumed  the  official  responsi- 
bility of  enunciating  the  doctrine  and  transmitting  it  to  Congress, 


6      THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

aggressive  tone  and,  in  the  twentieth  century,  it  came  to  be 
known  as  the  policy  of  the  **Big  Stick'*  or  the  exercise  of 
international  police  power.^  Finally,  President  Wilson,  in 
an  address  to  the  Senate  on  the  terms  of  a  possible  cessation 
of  the  Great  War,  proposed  that  *'the  nations  should  mth 
one  accord  adopt  the  doctrine  of  President  Monroe  as  the 
doctrine  of  the  world.''  ^ 

The  Monroe  Doctrine,  which  is  probably  one  of  the  three 
most  important  political  ideas  that  have  played  a  part  in 
the  development  of  the  nation,  was  thus  the  exclusive 
product  of  executive  initiative  in  foreign  policy  and  did  not 
receive  official  recognition  by  Congress  until  seventy-three 
years  after  its  original  promulgation  by  the  President.  It 
is  true,  however,  that  the  Presidents  have  deemed  it  desir- 
able to  secure  the  support,  and  at  least  the  tacit  approval, 
of  Congress  for  policies  enunciated,  and  for  this  reason 
they  have  usually  announced  their  views  and  policies  on 
foreign  affairs  in  addresses  or  messages  to  that  body. 

The  President's  power  of  formulating  policies  would  not 
be  of  such  great  importance  if  he  did  not  also  have  con- 
siderable control  over  the  execution  of  the  policies  formu- 
lated. Through  his  power  of  shaping  and  enunciating 
foreign  policies,  he  may  virtually  commit  the  nation  to  such 
policies,  at  least  in  a  moral  sense.^  To  him  is  also  en- 
trusted, in  large  measure,  the  execution  of  these  policies 
through  the  exercise  of  his  diplomatic,  military  and  general 
executive  powers;  although  it  is  desirable  that  Congress 
should  be  consulted,  because,  in  the  execution  of  such  poli- 
cies the  cooperation  of  that  body  may  sometimes  be  essen- 
tial. Some  of  the  policies  announced  by  the  President  may 
contain  the  seeds  of  war,  and  if  hostilities  break  out,  the 
action  of  Congress  is  necessary  for  the  declaration  of  war 

*See  Eoosevelt's  fourth  annual  message,  December  6,  1904. 
'Address  to  the  Senate,  January  22,  1917. 

»Cf.  Taft,  Our  Chief  Magistrate  and  His  Powers,  113-4;  Wilson,  Constittt- 
tional  Government  in  the  U.  S.,  77-8. 


THE  BASIS  AND  MODES  OF  CONTROL       7 

and  for  its  prosecution,  although,  as  will  be  pointed  out,^  the 
President  very  largely  controls  the  determination  of  the 
question  as  to  whether  there  shall  be  peace  or  war,  and  may 
manipulate  the  situation,  through  the  exercise  of  his  dip- 
lomatic and  military  powers,  so  as  practically  to  compel 
Congress  to  declare  war.^  Some  of  the  policies  enunciated 
by  the  President  may,  furthermore,  require  for  their 
fruition  the  making  of  international  agreements  to  which 
the  consent  of  the  Senate  is  necessary,  and  this,  as  will  be 
shown,  is  a  more  vital  check  upon  the  President's  control  of 
foreign  policy  than  is  the  power  of  Congress  to  declare 
war.3  In  the  address  of  President  Wilson  to  the  Senate, 
cited  above,  he  stated  that  he  addressed  that  body  ^  ^  as  the 
council  associated  with  me  in  the  final  determination  of  our 
international  obligations/'  It  is  true,  however,  that  the 
President's  object  in  this  address  seems  to  have  been  rather 
to  inform  the  Senate  as  to  policies  decided  upon  than  to 
consult  with  that  body  as  to  what  policies  should  be  adopted. 
Not  only  does  the  President  frequently  recognize  the  de- 
sirability of  Congressional  and  Senatorial  support  in  order 
to  bring  his  general  foreign  policies  to  fruition,  but  he  at 
the  same  time  recognizes  the  necessity  for  the  support  of 
public  opinion.  Hence,  an  address  to  Congress  is  usually 
also  an  address  to  the  people.  Indeed,  by  winning  popular 
support  for  his  views  on  questions  of  foreign  policy,  the 
President  may  sometimes  bring  about  desired  action  on  the 
part  of  even  an  unwilling  Congress.  President  Roosevelt 
achieved  some  notable  triumphs  in  this  way.  President 
Wilson  also  met  with  considerable  success,  at  least  during 
his  first  administration,  in  marshalling  public  opinion  so  as 
to  assure  the  Congressional  cooperation  which  he  deemed 

*See  Chap.  XVI. 

*0n  the  other  hand,  however,  it  is  true  that  the  President  has  sometimes 
been  practically  forced  into  war,  as  in  1812  and  1898,  through  the  bellicose 
attitude  of  Congress. 

'  President  Roosevelt,  however,  in  the  Santo  Domingo  affair  of  1905  was  able 
to  carry  out  his  policy  through  an  executive  agreement  without  the  consent  of 
the  Senate. 


8      THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

necessary  in  carrying  out  Ms  foreign  policies.  Notable 
examples  of  this  were  the  compliance  by  (ingress  with  his 
requests  for  the  repeal  of  the  act  exempting  American  coast- 
wise vessels  from  the  payment  of  tolls  in  passing  through 
the  Panama  Canal  and  the  tabling  of  the  McLemore  resolu- 
tion requesting  the  President  to  warn  American  citizens 
against  traveling  on  armed  belligerent  ships. 

Indirect  communication  by  the  President  of  his  foreign 
policy,  such  as  we  have  been  discussing,  though  usually  gen- 
eral in  character,  may  sometimes  be  directed  towards  some 
particular  foreign  government.  In  his  annual  message  to 
Congress,  the  President,  in  pursuance  of  his  constitutional 
duty  to  give  that  body  information  of  the  state  of  the 
Union,  frequently  dwells  at  length  upon  the  state  of  our 
relations  with  various  foreign  countries,  and  sometimes 
announces  the  policy  which  he  intends  to  pursue  towards 
some  particular  country.  Thus  in  his  first  annual  address 
to  Congress,  in  December,  1913,  President  Wilson  declared, 
with  reference  to  Mexico,  that  *'we  shall  not,  I  believe,  be 
obliged  to  alter  our  policy  of  watchful  waiting.''  The 
President  may  also  sometimes  announce  a  policy  directly 
to  a  particular  country  and  at  the  same  time  inform  Con- 
gress of  his  decision.  Thus,  as  the  result  of  the  Sussex 
affair  in  1916,  President  Wilson  notified  Germany  directly 
that,  unless  she  should  immediately  declare  and  effect  an 
abandonment  of  her  methods  of  submarine  warfare,  our 
Government  would  be  constrained  to  sever  diplomatic  rela- 
tions with  Germany,  and  on  the  following  day,  in  an  address 
at  a  joint  session  of  Congress,  he  informed  that  body  of  his 
decision. 

The  President  is  sometimes  constrained  to  use  the  indi- 
rect method  of  announcing  his  policy  towards  a  particular 
foreign  country,  not  only  from  a  desire  to  transmit  to  Con- 
gress information  in  regard  to  the  matter,  but  also  because 
direct  communication  with  the  country  in  question  has  been 


THE  BASIS  AND  MODES  OF  CONTROL       9 

cut  off  through  the  severance  of  diplomatic  relations.^ 
Thus,  in  an  address  at  a  joint  session  of  Congress,  January 
8,  1918,  President  Wilson  outlined  the  program  upon  which 
he  would  consider  peace  with  Germany,  as  embodied  in  the 
famous  ^* fourteen  points,''  and,  in  the  following  October, 
Germany  formally  accepted  these  points  as  a  basis  for  peace 
negotiations.  Here,  as  in  the  case  of  the  President's  ad- 
dress to  the  Senate,  cited  above,  his  object  appears  to  have 
been  to  inform  Congress,  as  well  as  Germany,  of  the  pro- 
gram decided  upon,  rather  than  to  consult  Congress  as  to 
the  terms  to  be  adopted.  That  the  President  alone  could 
not,  however,  finally  commit  our  Government  to  the  terms 
of  his  peace  program,  in  so  far  as  they  were  embodied  in 
the  Treaty  of  Versailles,  was  shown  by  the  Senate's  rejec- 
tion of  that  treaty. 

Even  though  diplomatic  relations  are  not  severed,  there 
may  be  a  decided  advantage  in  favor  of  the  method  of 
indirect  conmiunication  through  a  message  or  address  to 
Congress.  Indeed,  information  as  to  the  policy  of  our  Gov- 
ernment may  generally  be  communicated  in  this  way  with 
little  loss  of  effectiveness  and  without  incurring  the  pos- 
sible embarrassments  of  a  diplomatic  note.  Thus,  in  his 
annual  message  of  December,  1834,  President  Jackson  de- 
clared that  if  France  continued  to  delay  the  execution  of 
the  convention  of  1831,  the  United  States  ought  to  take 
redress  into  its  own  hands.  The  President  subsequently 
declined  to  give  the  French  Government  any  explanations 
of  his  message,  partly  on  the  ground  that  **the  right  of  a 
foreign  government  to  ask  explanations  of  or  to  interfere 
in  any  manner  in  the  communications  of  one  branch  of  the 
Government  of  the  United  States  with  another  could  not  be 
admitted."  2 

The  President  sometimes  enunciates  his  foreign  policies 

*  Indirect  communication,  of  course,  may  usually  still  be  carried  on  through 
third  states,  which  have  proffered  their  good  offices  for  this  purpose. 

*  J.  B.  Moore,  Digest  of  Intemat.  Law,  VII,  125.  This  point  has  been  further 
brought  out  in  other  instances.    Hid.,  IV,  sect.  671. 


10    THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

in  addresses  to  bodies  other  than  Congress.  Thus,  Presi- 
dent Wilson,  in  an  address  to  the  Southern  Commercial 
Congress,  declared  that  the  United  States  *  ^  will  never  again 
seek  one  additional  foot  of  territory  by  conquest. ' '  ^  Again, 
his  Flag  Day  address  of  1917  to  his  fellow  citizens  was  at 
once  an  exhortation  to  the  people  and  an  announcement  to 
the  enemy  and  to  the  powers  with  which  we  were  associated 
of  our  determination  to  prosecute  the  war  to  a  successful 
conclusion. 

A  phase  of  our  foreign  policy  which  has  had  a  verj^  im- 
portant influence  upon  our  national  development  is  the 
acquisition  of  territory.  In  this  respect,  also,  the  President 
has  generally  taken  the  initiative.  This  is  due  in  part  to 
the  fact  that  most  of  the  territory  acquired  since  1789  has 
been  obtained  through  the  exercise  of  the  treaty-making 
power,  in  which  the  President  assumes  the  role  of  negotia- 
tor. Thus,  in  spite  of  his  scruples  as  to  constitutional 
power,  Jefferson  led  in  making  the  treaty  of  1803  with 
France  for  the  annexation  of  Louisiana.^  Again,  President 
McKinley  and  the  commissioners  whom  he  appointed  to 
negotiate  the  treaty  of  1898  with  Spain  assumed  the  initia- 
tive, as  the  representatives  of  the  victorious  power,  in  de- 
manding the  cession  of  the  entire  Philippine  archipelago 
instead  of  merely  the  island  of  Luzon.  Furthermore,  in 
one  case,  territory  was  acquired  by  the  United  States  by 
means  of  a  simple  executive  agreement,  without  submis- 
sion of  the  question  to  the  Senate.  This  was  done  in  the 
case  of  Horse-shoe  Reef  in  Lake  Erie,  which  was  ceded  by 
Great  Britain  in  1850.^    In  most  of  the  cases  in  which  ter- 

» Address  at  Mobile,  Ala.,  Oct.  27,  1913,  Sen.  doe.  226,  63rd  Cong.,  1st  sess., 

D    5 

«*''The  Executive,"  said  Jefferson,  "in  seizing  the  fugitive  occurrence  which 
so  much  advances  the  good  of  the  country,  has  done  an  act  beyond  the  Con- 
stitution."    Writmgs,  TV,  500. 

»Malloy,  Treaties,  etc.,  I,  663.  The  conditions  attached  to  the  cession  were 
that  the  United  States  should  erect  a  lighthouse  on  the  reef,  but  should  not 
erect  fortifications.     This  was,  of  course,  uninhabited  territory. 


THE  BASIS  AND  MODES  OP  CONTROL  11 

ritory  has  been  acquired,  an  appropriation  by  Congress  has 
been  necessary  to  complete  the  transaction,  and  the  Presi- 
dent has  sometimes  requested  and  secured  such  an  appro- 
priation in  advance. 

The  initiative  assumed  by  the  President  in  the  acquisition 
of  territory  may  sometimes  arise,  not  from  his  role  as 
negotiator  of  treaties,  but  from  his  general  control  of 
foreign  policy.  This  was  shown  by  the  annexation  of  Texas, 
to  which  Presidents  Tyler  and  Polk  were  committed.^  In 
this  instance  the  treaty  providing  for  annexation  failed  in 
the  Senate  and  Texas  was  brought  into  the  Union  by  joint 
resolution  of  Congress.  The  Hawaiian  Islands  were  also 
annexed  by  the  same  method,  although  President  Cleveland 
had  prevented  the  annexation  from  becoming  an  accom- 
plished fact  during  his  second  administration  by  withdraw- 
ing from  the  Senate  a  treaty  for  that  purpose  which  had 
been  submitted  by  his  predecessor.  That  the  President  is 
not  always  able  to  carry  into  execution  his  policy  regarding 
the  annexation  of  territory  is  indicated  by  the  failure  of 
President  Grant  to  consummate  his  cherished  design  of 
bringing  about,  either  by  treaty  or  by  Congressional  reso- 
lution, the  annexation  of  Santo  Domingo.  This  failure  was 
probably  due  as  much  to  political  hostility  to  Grant  in  the 
Senate  as  to  opposition  to  the  annexation  project  per  se,^ 
It  is  to  be  noted,  however,  that  both  Santo  Domingo  and 
Haiti  have  been  transformed  into  quasi-protectorates  of 
the  United   States   through  the  positive   and  aggressive 

*Keeves,  American  Diplomacy  under  Tyler  and  Folic.  For  President  Polk's 
attitude  on  a  territorial  indemnity  from  Mexico,  see  Richardson,  Mess,  and  Pap. 
of  the  Presidents,  IV,  537-8. 

'In  this  connection  mention  should  also  be  made  of  the  action  of  Congress 
in  regard  to  President  Wilson's  request  for  authority  to  assume  a  mandate 
over  Armenia.  In  a  communication  to  Congress,  dated  May  24,  1920,  the 
President  said:  "In  response  to  the  invitation  of  the  council  at  San  Remo,  I 
urgently  advise  and  request  that  the  Congress  grant  the  Executive  power  to 
accept  for  the  United  States  a  mandate  over  Armenia."  Congress,  however, 
respectfully  declined  to  grant  the  authority  requested.  Cong.  Record,  May  24, 
June  1,  1920,  pp.  8138,  8693. 


12     THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

application  of  the  Monroe  Doctrine  carried  out  on  the  in- 
itiative of  the  President  during  the  administrations  of 
Eoosevelt  and  Wilson.^ 

In  a  number  of  cases,  the  Supreme  Court  has  recognized 
the  authority  of  the  President  to  determine  political  ques- 
tions connected  with  our  foreign  relations.  For  example, 
when  the  Executive  denied  the  jurisdiction  which  Argen- 
tina had  assumed  to  exercise  over  the  Falkland  Islands,  the 
Supreme  Court  held  that  this  fact  must  be  taken  and  acted 
upon  by  the  court  in  deciding  the  case  before  it.  ^^Can 
there  be  ai^y* doubt,''  asked  the  court,  ^Hhat  when  the 
executive  branch  of  the  government,  which  is  charged  with 
our  foreign  relations,  shall,  in  its  correspondence  with  a 
foreign  nation,  assume  a  fact  in  regard  to  the  sovereignty 
of  any  island  or  country,  it  is  conclusive  on  the  judicial 
department  r '  2  In  other  cases,  the  court  has  laid  down 
the  rule  that  the  action  of  the  political  branches  of  the  Gov- 
ernment— Congress,  the  President,  and  the  treaty-making 
power — in  a  matter  that  belongs  to  them  is  conclusive.^ 
As  ex-President  Taft  has  pointed  out,  **the  decision  of  Con- 
gress or  the  treaty-making  power  upon  such  an  issue  would 
be  binding  upon  the  courts,  but  in  the  absence  of  the  de- 
cision of  either,  the  action  of  the  President  is  conclusive 
with  the  courts."* 

*  The  treaty  for  the  annexation  of  the  Danish  West  Indies,  brought  forward 
in  President  Johnson's  administration,  also  failed  to  secure  the  approval  of 
the  Senate  largely  on  account  of  political  hostility  to  the  President,  but  the 
islands  were  subsequently  annexed  by  treaty  during  President  Wilson's  admin- 
istration. 

President  Roosevelt  was  probably  largely  influential  in  bringing  about  con- 
ditions which  enabled  the  IJnited  States  to  secure  possession  of  the  Panama 
Canal  Zone.  Indeed,  in  an  address  at  the  University  of  California,  March  23, 
1911,  he  is  reported  as  having  said:  *'I  took  the  Canal  Zone." 

» Williams  v,  Suffolk  Ins.  Co.,  13  Pet.,  420  (1839).  Cf.  Charlton  v.  Kelly, 
229  U.  S.,  447. 

'Foster  v.  Neilson,  2  Pet.,  307 j  Garcia  v.  Lee,  12  ibid.,  511.  Cf.  Jones  v. 
U.  S.,  137  U.  S.,  212. 

*  Our  Chief  Magistrate  and  His  Powers,  118. 


THE  BASIS  AND  MODES  OF  CONTROL  13 


CONGRESSIONAL  INITIATIVE  AND  INFLUENCE 

On  several  occasions  Congress  has  assumed  to  speak  for 
the  United  States  on  questions  of  foreign  policy,  not,  of 
course,  as  a  direct  organ  of  international  communication, 
but  rather  as  the  mouthpiece  of  public  opinion  in  matters 
concerning  the  nation,  whether  domestic  or  foreign.  On 
account  of  the  necessity  which  the  President  may  feel  of 
securing  the  support  of  Congress  for  the  policy  which  he 
has  tentatively  determined  upon,  the  action  of  Congress 
may  sometimes  be  taken  at  the  suggestion  of  the  President. 
This  is  always  true  of  a  declaration  of  war,  because  the 
Constitution  specifically  invests  that  power  in  Congress. 
But  the  same  thing  may  happen  in  eases  in  which  the  imme- 
diate action  of  Congress  is  not  constitutionally  necessary 
to  the  initiation  of  the  project,  however  necessary  the  ulti- 
mate support  of  that  body  may  be  for  the  project's  consum- 
mation. Thus,  at  the  suggestion  of  President  Madison, 
made  in  a  confidential  message  of  January  3, 1811,  Congress 
passed  a  secret  joint  resolution,  declaring  that  the  **  United 
States  .  .  .  cannot,  without  serious  inquietude,  see  any  part 
of  the  territory  adjoining  the  Southern  border  of  the  United 
States  pass  into  the  hands  of  any  foreign  power."  ^ 

Congress,  however,  or  either  branch  thereof,  has  some- 
times taken  the  initiative  in  passing  resolutions  relating  to 
foreign  affairs  which  have  not  been  suggested  by  the  Presi- 
dent. Thus,  in  1864  the  House  of  Representatives  unani- 
mously passed  a  joint  resolution  declaring  that 

**the  Congress  of  the  United  States  are  unwilling  by 
silence  to  leave  the  nations  of  the  world  under  the  impres- 
sion that  they  are  indifferent  spectators  of  the  deplorable 
events  now  transpiring  in  the  Republic  of  Mexico ;  and  that 
they  therefore  think  fit  to  declare  that  it  does  not  accord 
with  the  policy  of  the  United  States  to  acknowledge  any 

*  Approved  January  15,  1811,  and  published  in  1818,  3  U.  S.  Stat  at  L.,  471-2. 


14    THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

monarchical  government,  erected  on  the  ruins  of  any  repub- 
lican government  in  America,  under  the  auspices  of  any 
European  power/'  ^ 

This  resolution,  which  was  evidently  an  attempt  on  the 
part  of  the  House  to  force  the  hand  of  the  President  in 
regard  to  his  Mexican  policy,  was  not  acted  upon  by  the 
Senate.  In  a  dispatch  to  our  minister  to  France,  Secretary 
Seward  pointed  out  that  it  emanated  from  suggestions 
offered  by  members  of  the  House  itself,  and  not  from  any 
communication  of  the  Executive  department,  and  declared 
that  the  French  Government  would  be  seasonably  apprised 
of  any  change  of  the  policy  of  our  Government  toward 
Mexico.  *^This,''  he  further  declared,  *4s  a  practical  and 
purely  executive  question,  and  the  decision  of  it  constitu- 
tionally belongs  not  to  the  House  of  Eepresentatives  nor 

even  to  Congress,  but  to  the  President  of  the  United 
States.'' 2 

This  note  having  been  communicated  to  the  House  in 
response  to  a  request  from  that  body,^  a  report  was  made 
by  the  Committee  on  Foreign  Affairs,  expressing  regret 
that  the  President  should  have  thought  proper  to  inform  a 
foreign  government  of  a  **  radical  and  serious  conflict  of 
opinion  and  jurisdiction  between  the  depositories  of  the 
legislative  and  executive  power  of  the  United  States."* 
The  report  also  recommended  the  adoption  of  a  resolution, 
which,  with  a  slight  amendment,  was  passed  by  the  House 
a  few  months  later,  declaring  that 

**  Congress  has  a  constitutional  right  to  an  authoritative 
voice  in  declaring  and  prescribing  the  foreign  policy  of  the 
United  States,  as  well  in  the  recognition  of  new  powers  as 
in  other  matters;  and  it  is  the  constitutional  duty  of  the 

» Cong.  Globe,  April  4,  1864,  vol.  34,  p.  1408. 

«  Mr.  Seward  to  Mr.  Dayton,  April  7,  1864,  Sen.  Ex.  doc.  6,  39th  Cong.,  iBt 

38.,  p.  5;  Hinds,  Precedents,  II,  1007. 

•  House  Ex.  doe.  92,  38th  Cong.,  1st  sess. 

*  House  report  no.  129,  38th  Cong.,  Ist  sess.,  p.  1  (June  27,  1864). 


THE  BASIS  AND  MODES  OF  CONTROL      15 

executive  department  to  respect  that  policy,  not  less  in  dip- 
lomatic negotiations  than  in  the  use  of  national  force  when 
authorized  by  law ;  and  the  propriety  of  any  declaration  of 
foreign  policy  by  Congress  is  sufficiently  proved  by  the  vote 
which  pronounces  it;  and  such  proposition,  while  pending 
and  undetermined,  is  not  a  fit  topic  of  diplomatic  explana- 
tion with  any  foreign  power.''  ^ 

In  the  debate  on  this  resolution  Mr.  Blaine  declared  that 
it  embodied  **a  new  theory  in  the  administration  of  our 
foreign  affairs.''  ^  Its  contention  that  Congress  is  invested 
with  an  authoritative  voice  in  determining  the  foreign 
policy  of  the  United  States  seems,  indeed,  scarcely  to  be 
borne  out  by  previous  and  subsequent  practice.  In  spite  of 
the  passage  of  the  resolution.  President  Lincoln  kept  full 
control  over  the  policy  of  our  Government  towards  the 
French  in  Mexico,  and  the  wisdom  of  this  course  was  dem- 
onstrated by  the  result.  We  must  concur  in  the  judgment 
passed  upon  this  incident  by  a  leading  American  historian, 
who  says: 

**Our  democracy  and  our  representatives  in  Congress 
probably  will  never  learn  that  the  delicate  questions  of 
diplomacy,  until  they  reach  the  point  where  constitutionally 
the  Senate  and  the  House  must  be  partakers  in  the  action, 
ought  to  be  left  to  the  Executive.  It  will  prove  generally, 
as  it  certainly  did  in  this  case,  that  the  President  and  the 
Secretary  of  State  can  deal  with  such  matters  with  greater 
foresight  and  wisdom. ' '  ^ 

*  The  first  half  of  the  resolution  was  carried  by  a  vote  of  118  to  8  and  the 
second  half  by  68  to  58.  Cong.  Globe,  38th  Cong.,  2nd  sess.,  Dec.  19,  1864, 
pp.  66-7;  cf.  J.  M.  Callahan,  Evolution  of  Seward's  Mexican  Policy,  49  j  Hinds, 
Precedents,  II,  1009. 

^  The  resolution  as  passed  by  the  House  was  a  simple  House  resolution  and 
therefore  was  not  submitted  to  the  Senate,  but  on  Feb.  28,  1863,  a  concurrent 
resolution  was  introduced  in  the  Senate  by  Mr.  Sumner,  from  the  Committee 
on  Foreign  Eelations,  declaring  that  Congress  would  be  obliged  to  look  upon 
any  further  attempt  at  mediation  by  foreign  powers  in  the  Civil  War  as  an 
unfriendly  act.  President  Lincoln,  however,,  had  already  promptly  rejected  the 
offer  of  mediation.    Sen.  misc.  doc.  38,  37th  Cong.,  3rd  sess. 

•Rhodes,  History  of  the  United  States,  IV,  471. 


16     THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

The  Senate,  also,  has  undertaken,  on  occasion,  to  formu- 
late the  foreign  policy  of  the  United  States  independently 
of  Presidential  suggestion.  Thus,  in  view  of  the  reported 
attempt  of  a  Japanese  corporation  to  secure  control  of 
land  on  Magdalena  Bay  in  Lower  California,  the  upper 
house,  on  August  2,  1912,  by  a  vote  of  51  to  4,  adopted  the 
following  simple  resolution: 

*^That  when  any  harbor  or  other  place  in  the  American 
continents  is  so  situated  that  the  occupation  thereof  for 
naval  or  military  purposes  might  threaten  the  communica- 
tions or  the  safety  of  the  United  States,  the  Government 
of  the  United  States  could  not  see  without  grave  concern  the 
possession  of  such  harbor  or  other  place  by  any  corpora- 
tion or  association  which  has  such  a  relation  to  another 
Government,  not  American,  as  to  give  that  Government 
practical  power  of  control  for  naval  or  military  purposes. ' '  ^ 

That  this  was  intended  as  an  announcement  to  foreign 
powers  of  our  national  policy  was  clearly  shown  by  the 
statement  of  Senator  Lodge,  chairman  of  the  Committee 
on  Foreign  Relations,  who  said:  ^*It  seemed  to  the  Com- 
mittee that  it  was  very  wise  to  make  this  statement  of 
policy  at  this  time,  when  it  can  give  offense  to  no  one  and 
makes  the  position  of  the  United  States  clear.  "^ 

The  Senate  has  also  undertaken  to  enunciate  general 
principles  of  American  foreign  policy  in  the  form  of  reser- 
vations attached  to  its  resolutions  advising  and  consenting 
to  the  ratification  of  treaties.  Thus,  in  consenting  to  the 
ratification  of  the  conventions  adopted  at  the  First  and 
Second  Hague  Conferences  and  at  the  Algeciras  Conference 
in  1906,  the  Senate  did  so  on  condition  that  such  action 

*  Cong.  Record,  vol.  48,  pp.  10045-7.  TMb  resolution  was  passed  after  infor- 
mation on  the  subject  had  been  sought  and  obtained  from  the  President  which 
"went  to  show  that  the  conduct  of  other  powers  in  regard  to  those  lands  had 
been  entirely  correct."  6  Am.  Jour.  Intemut.  Lam,  938.  See  also  Sen.  rept. 
996  and  Sen.  docs.  640  and  694,  all  of  the  62nd  Cong.,  2nd  sess. 

'Cong.  Record,  vol.  48,  p.  10045.  The  Magdalena  Bay  resolution,  being  a 
simple  Senate  resolution,  and  not  a  joint  resolution,  was  not  submitted  to  the 
President  for  his  approval  or  disapproval. 


THE  BASIS  AND  MODES  OP  CONTROL  17 

should  not  be  so  construed  as  to  require  the  United  States 
to  depart  from  its  traditional  policy  against  participation 
in  the  settlement  of  European  political  questions,  nor  from 
its  traditional  attitude  toward  purely  American  questions.^ 
In  order  that  such  reservations  may  have  any  legal  validity 
as  part  of  the  treaty  they  must  be  approved  by  the  Presi- 
dent ;  for  if  they  were  unsatisfactory  to  him  he  might  refuse 
to  proceed  with  the  ratification.  Practically,  however,  he 
might,  under  some  circumstances,  be  forced  to  give  formal 
approval  to  Senate  reservations  to  which  he  was  really 
opposed  in  order  to  secure  the  consent  of  the  Senate  to 
the  ratification  of  a  treaty  of  which,  in  the  main,  he  ap- 
proved. 

Finally,  the  two  houses  of  Congress,  by  act  or  by  joint 
resolution,  may  undertake  to  formulate  foreign  policies, 
although,  in  this  case,  the  project,  in  order  to  be  adopted, 
must,  of  course,  be  approved  by  the  President  or  repassed 
over  his  veto.^  For  example,  in  1916  Congress  passed  an 
act  by  which  it  was  *  *  declared  to  be  the  policy  of  the  United 
States  to  adjust  and  settle  its  international  disputes 
through  mediation  or  arbitration,  to  the  end  that  war  may 
be  honorably  avoided. '  *  ^ 

CONGRESSIONAL.  REQUESTS  FOR  INFORMATION 

^  The  control  of  foreign  relations  naturally  tends  to  gravi- 
tate into  the  hands  of  that  department  of  the  government 
which  is  in  the  best  position  to  secure,  as  a  basis  for  action, 
adequate  information  regarding  the  state  of  those  relations. 

» Malloy,  Treaties,  2032,  2183,  2247. 

'When  such  a  policy  depends  for  its  execution  upon  positive  action  on  the 
part  of  the  President,  it  could  hardly  be  carried  out,  if  disapproved  by  him, 
even  though  the  act  or  joint  resolution  embodying  it  were  repassed  over  hia 
veto. 

'  39  U.  S.  Stat,  at  L.,  618.  It  should  be  mentioned  that  Congress  exercises 
a  very  pervasive  influence  throughout  the  administration  of  foreign  relations 
by  means  of  its  power  of  passing  or  withholding  appropriations.  This  power 
is  discussed  in  connection  with  the  various  phases  of  foreign  relations  upon 
which  it  exerts  an  influence. 


18    THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

In  this  respect  Congress  is  at  a  disadvantage  as  compared 
with  the  President,  who  very  largely  controls  the  oflficial 
channels  of  information.  Through  his  control  over  the 
state  department  and  the  diplomatic  service,  he  is  in  touch 
with  more  authentic  and  widespread  sources  of  information 
than  are  available  for  others.  In  order  to  take  intelligent 
action  in  regard  to  foreign  relations.  Congress  is  therefore 
frequently  dependent  upon  such  information  as  it  may  be 
able  to  secure  from  the  President.  On  account  of  the  largely 
separate  and  independent  position  occupied  by  the  legisla- 
tive and  executive  departments  in  our  Government,  the 
heads  of  executive  departments  having  no  seats  in  Con- 
gress, facilities  do  not  exist  such  as  are  found  in  European 
parliamentary  governments,  whereby  the  legislature, 
through  direct  questions  and  interpellations,  may  secure 
information  from  the  executive.  Our  Constitution,  how- 
ever, imposes  upon  the  President  the  duty  to  give  to  Con- 
gress, from  time  to  time,  information  on  the  state  of  the 
Union ;  and  the  Secretary  of  State  sometimes  appears,  upon 
request,  and  testifies  before  the  Senate  Committee  on 
Foreign  Relations. 

The  ordinary  means,  however,  whereby  Congress  at- 
tempts to  secure  information  from  the  President  is  the 
passage  of  simple  Senate  or  House  resolutions  requesting 
him  to  furnish  it.  Each  branch  of  Congress  is  constantly 
attempting  to  take  a  hand  in  foreign  relations  by  request- 
ing the  President  or  Secretary  of  State  to  furnish  informa- 
tion regarding  them.  Compliance  with  such  requests,  how- 
ever, is  almost  invariably  asked  only  in  so  far  as  may  be 
deemed  compatible  with  the  public  interests.*     The  ques- 

*  On  January  4,  1848,  however,  the  House  passed  a  resolution,  witnout  the 
customary  reservation,  requesting  certain  information  from  President  Polk, 
and  he  declined  to  transmit  it  to  that  body  except  in  so  far  as  he  deemed  it 
expedient  to  allow  it  to  become  public.  Kichardson,  Mess,  and  Pap.  of  the 
Presidents,  IV,  566. 

In  1826,  it  was  moved  to  amend  a  House  resolution  calling  upon  the  President 
for  information  by  striking  out  the  customary  condition  of  compatibility  with 
the  public  interest.     In  the  course  of  debate,  it  was  argued  that  the  House 


THE  BASIS  AND  MODES  OF  CONTROL  19 

tion  whether  it  is  compatible  with  the  public  interests  to 
furnish  information  asked  for  is  one  to  be  decided  freely  by 
the  President ;  except  in  a  case  of  impeachment,  an  unwil- 
ling President  cannot  be  compelled  to  furnish  information.* 
Although  the  President  usually  complies  with  such  re- 
quests, he  sometimes  does  so  only  after  a  prolonged  delay; 
he  may  fail  to  make  any  answer  at  all,  or  may  expressly 
decline  to  comply  with  the  request,  on  the  ground  that  it  is 
incompatible  with  the  public  interests  to  make  the  infor- 
mation public,  since  it  relates  to  a  matter  about  which 
negotiations  with  foreign  powers  are  pending.^  The  House 
and  Senate  resolutions  are  generally  directed  to  the  Presi- 
dent, but  sometimes  to  the  Secretary  of  State.  The  latter 
officer,  however,  acts  as  the  agent  of,  and  in  subordination 
to,  the  President,  and  will  not  furnish  the  information  re- 
quested if  directed  by  the  President  not  to  do  so..  In  1909 
President  Taft  issued  an  executive  order  directing  the  heads 
of  departments  to  furnish  information  when  called  upon  by 
a  resolution  of  the  Senate  or  House  of  Eepresentatives,  un- 
less in  their  judgment  it  was  incompatible  with  the  public 
interests  to  do  so;  and  in  this  case  they  should  refer  the 
matter  to  the  President  for  his  direction.^ 

The  President  sometimes  sends  information  to  Congress 
with  the  request  that  it  be  considered  in  confidence  and  be 
not  made  public  immediately.  Thus,  President  Adams,  in 
1798,  transmitted,  with  such  a  request,  certain  papers  con- 
might  demand  any  information  it  might  constitutionally  want,  and,  in  case 
of  refusal,  take  the  information  by  ordinary  process  of  the  Sergeant-at-Arms. 
This  extreme  view,  however,  was  opposed  by  others  who  held  that  the  President 
was  as  independent  in  his  sphere  as  the  House  in  theirs.  Daniel  Webster  was 
among  those  who  opposed  the  amendment,  and  it  was  lost  by  a  vote  of  71  to 
98.     Hinds,  Precedents,  II,  1019-1021. 

*  This  was  indicated  in  the  case  of  President  Washington 's  contest  with  the 
House  over  the  Jay  Treaty,  as  noted  below  (see  p.  220). 

'  For  example,  President  Wilson  and  Secretary  Bryan  refused  on  this  ground 
to  comply  with  the  requests  of  the  Senate  calling  for  all  correspondence  with 
belligerent  nations  concerning  the  treatment  of  shipments  of  copper  to  neutral 
countries  and  concerning  the  treatment  of  certain  naval  stores  as  contraband 
of  war,  as  embodied  in  its  resolutions  of  Jan.  6  and  Jan.  8,  1915.  Sen.  docs. 
798  and  799,  63rd  Cong.,  3rd  sess. 

'  Executive  order  No.  1062,  April  14,  1909. 


20     THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

cerning  our  relations  with  France.^  The  President  cannot 
be  absolutely  assured,  however,  that  his  request  for  secrecy 
will  be  observed.  Congressional  requests  for  information 
may  have  the  effect  of  placing  the  President  in  an  embar- 
rassing position,  because  if  he  answers  that  it  would  be 
incompatible  with  the  public  interest  to  make  the  informa- 
tion public,  his  answer  may  be  misconstrued  and  may  give 
rise  to  the  suspicion  that  the  transactions  involved  are  of 
such  a  character  that  they  will  not  bear  the  light  of  day. 
Accordingly,  the  President  may  prefer  to  make  no  answer 
at  all.  This  course  may  seem  to  be  not  very  courteous  to 
Congress,  but  it  may  not  be  without  justification.  Just  as 
interpellations  in  France  may  be  designed,  not  so  much  to 
secure  information,  as  to  bring  on  a  vote  of  want  of  confi- 
dence in  the  Government,  so  requests  for  information  by 
Congress  may  be  made  in  order  to  embarrass  the  adminis- 
tration in  handling  foreign  relations  and  may  even  be 
disguised  attempts  on  the  part  of  Congress  to  force  the 
hand  of  the  President  and  to  reduce  the  degree  of  control 
over  international  affairs  which  he  would  otherwise  be  able 
to  exercise.  This  is  especially  likely  to  happen  when  there 
is  a  lack  of  good  working  relations  between  the  President 
and  Congress,  due  to  the  fact  that  the  two  branches  of  the 
Government  are  controlled  by  rival  political  parties  or  by 
different  factions  of  the  same  party. 

As  a  rule,  information  is  requested  of  the  President  by 
House  or  Senate  resolution  only  upon  matters  with  regard 
to  which  those  bodies  are  constitutionally  empowered  to 
take  action.  Thus,  in  the  performance  of  their  constitu- 
tional functions  in  connection  with  impeachment,  the  two 
houses  of  Congress  may  doubtless  exercise  such  incidental 
powers  as  are  necessary  in  order  that  the  constitutional 
power  may  be  effectuated.  One  such  incidental  power  might 
be  that  of  requiring  information,  including  essential  papers 
and  documents,  from  the  President  or  head  of  an  executive 

*  Bichardson,  Mess,  and  Pap.  of  the  Presidents,  I,  265, 


THE  BASIS  AND  MODES  OF  CONTROL  21 

department,  regarding  his  conduct  in  office.  Where  the 
constitutionally  authorized  action  contemplated  by  Con- 
gress, however,  does  not  specifically  relate  to  the  conduct 
of  the  Executive,  as,  for  example,  the  passing  of  an  appro- 
priation bill,  the  situation  would  be  different.  President 
Washington,  as  we  shall  see,  refused  to  send  to  the  House 
of  Representatives  copies  of  Jay's  instructions  and  other 
papers  relating  to  the  Jay  Treaty,  although  he  intimated 
that,  had  it  been  a  case  of  impeachment,  he  would  have  fur- 
nished them.  Except  where  the  Congressional  action 
contemplated  relates  specifically  to  the  conduct  of  the 
Executive,  the  President  has  full  discretion  to  withhold  the 
information  requested,  if  he  so  desires,  even  though  it  re- 
lates to  a  matter  upon  which  Congress  is  constitutionally 
empowered  to  act.  The  right  to  refuse  exists,  a  fortiori,  if 
the  Congressional  action  contemplated  relates  to  a  matter 
about  which  Congress  is  not  empowered,  by  the  Constitu- 
tion, to  act. 

INTERNATIONAL.   COMMUNICATION 

A  distinction  may  be  made  between  the  formulation  of 
foreign  policies  and  the  direct  communication  of  them  to 
foreign  governments.  The  power  of  formulation  and  that 
of  direct  communication  are  commonly,  but  not  necessarily, 
vested  in  the  same  organ  of  government.  Direct  communi- 
cation with  foreign  governments  is  usually  maintained 
through  the  sending  and  receiving  of  diplomatic  representa- 
tives. The  conduct  of  foreign  relations,  however,  includes 
not  only  diplomatic  intercourse,  but  also  such  other  means 
and  instrumentalities  as  may  be  employed  for  the  purpose 
of  international  communication.  Foreign  policies  may  be 
formulated  by  the  appropriate  organ  of  our  Government 
and  merely  announced  to  the  world  without  immediate 
direct  communication  of  them  to  any  particular  foreign 
nation  or  group  of  nations.    International  communication, 


22     THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

therefore,  may  be  indirect,  as  well  as  direct.  Where  foreign 
policies  are  formulated  and  promulgated  without  being 
directly  communicated  to  any  particular  nation,  they  are 
usually  general  in  character  and  are  intended  for  the  infor- 
mation of  any  nation  or  group  of  nations  to  which  the  terms 
and  conditions  stipulated  may  be  applicable.^  Sometimes, 
however,  the  indirect  method  may  be  adopted  for  the  com- 
munication of  a  policy  intended  to  apply  to  a  single  nation. 
That  the  President  is  the  sole  organ  of  communication 
with  foreign  governments  has  been  maintained  in  the  utter- 
ances of  publicists  and  officials  of  the  Government  since  its 
foundation.  In  1793,  M.  Genet,  the  French  minister,  having 
requested  an  exequatur  for  a  consul  whose  commission  was 
addressed  to  Congress,  Secretary  of  State  Jefferson  in- 
formed him  that  the  President,  **  being  the  only  channel  of 
communication  between  this  country  and  foreign  nations,  it 
is  from  him  alone  that  foreign  nations  or  their  agents  are 
to  learn  what  is  or  has  been  the  will  of  the  nation,  and 
whatever  he  communicates  as  such,  they  have  a  right,  and 
are  bound  to  consider  as  the  expression  of  the  nation. ' '  ^ 
The  same  idea  was  expressed  in  Congress  by  John  Marshall 
during  the  debate  on  the  Jonathan  Bobbins  extradition 
case,  in  which  he  said:  ^^The  President  is  the  sole  organ 
of  the  nation  in  its  external  relations,  and  its  sole  repre- 
sentative with  foreign  nations.  Of  consequence,  the  demand 
of  a  foreign  nation  can  only  be  made  on  him.''^  In  the 
papers  which  he  published  under  the  name  of  **Pacificus'' 
a  propos  of  Washington's  proclamation  of  neutrality  in 
1793,  Alexander  Hamilton  enunciated  practically  the  same 
principle,  although  in  negative  form,  as  follows :  *  ^  The  leg- 
islative department  is  not  the  organ  of  intercourse  between 

^  It  is  of  course  true  that  general  policies  applying  to  a  group  of  nations  may 
also  be  directly  communicated,  as  in  the  case  of  Secretary  Hay 's  circular  note 
to  Eussia,  Germany,  Great  Britain,  Italy  and  Japan  regarding  the  policy  of 
the  "open  door"  in  China.     For.  Eels,  of  V.  S.,  1899,  140-1;  ibid.,  1900,  142. 

'Am.  State  Papers,  For.  Eels.,  I,  184;  Moore,  Digest  of  Int.  Law,  IV,  680. 

^Annals,  March  7,  1800,  6th  Cong.,  col.  613. 


THE  BASIS  AND  MODES  OF  CONTROL  23 

the  United  Stages  and  foreign  nations.  It  is  charged  neither 
with  making  nor  interpreting  treaties.  It  is  therefore  not 
naturally  that  member  of  the  government  which  is  to  pro- 
nounce on  the  existing  condition  of  the  nation  with  regard 
to  foreign  powers.''  ^ 

The  above  statements  manifestly  have  reference  mainly 
to  direct  communication  with  foreign  nations.  There  is 
nothing  physically  impossible,  however,  about  a  legislative 
body  carrying  on  foreign  relations  directly  through  its  own 
agents.  If  any  proof  of  this  were  needed,  it  would  be  sup- 
plied by  our  own  experience  under  the  Articles  of  Confed- 
eration. That  experience,  however,  also  revealed  the  unsat- 
isfactory results  which  flow  from  the  conduct  of  foreign 
relations  by  a  legislative  body.  Under  the  Articles,  Con- 
gress had  the  powers  of  sending  and  receiving  diplomatic 
representatives — powers  which  neither  Congress  nor  the 
Senate  can  exercise  under  the  present  Constitution.  Under 
the  latter  instrument  these  powers  are  transferred  to  the 
President,  and  by  custom  and  practice  it  has  been  estab- 
lished that  these  powers  of  the  President  are  exclusive,  so 
that  he  becomes  the  sole  organ  of  direct  communication 
with  foreign  governments. 

In  communicating  with  foreign  governments,  Congress, 
therefore,  is  limited  to  the  indirect  method,  which  may 
use  as  a  medium  either  the  President  or  Secretary  of  State 
or  a  general  announcement  conveyed  to  the  world  through 
the  ordinary  channels  for  the  transmission  of  intelligence. 
In  employing  the  former  means  of  indirect  communication, 
Congress  is  dependent  upon  the  consent  of  the  President. 
It  may  ^ '  request, ' '  but  may  not  *  *  direct, ' '  the  Secretary  of 
State  to  transmit  on  its  behalf  a  communication  to  a  foreign 
government ;  for  the  Secretary  of  State  is  the  agent  of  the 
President  in  handling  foreign  affairs  and  conducting  corre- 
spondence with  foreign  governments,  and  whatever  direc- 

^  Works  (Lodge  ed.),  IV,  139. 


24     TH5:  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tions  are  issued  to  him  relating  to  these  matters  properly 
come  from  the  President.^  Thus,  when,  in  1877,  Congress 
passed  two  joint  resolutions  calling  upon  the  Secretary  of 
State  to  communicate  to  the  Argentine  Republic  and  the 
Republic  of  Pretoria  acknowledgments  of  the  receipt  by 
Congress  of  congratulatory  messages  from  these  govern- 
ments, President  G-rant  vetoed  both  resolutions,  on  the 
ground  that,  in  effect,  they  infringed  upon  the  constitutional 
rights  of  the  Executive.  **The  Constitution,"  he  declared, 
*^ following  the  established  usage  of  nations,  has  indicated 
the  President  as  the  agent  to  represent  the  national 
sovereignty  in  its  intercourse  with  foreign  powers  and  to 
receive  all  oflScial  communications  from  them  .  .  .  making 
him,  in  the  language  of  one  of  the  most  eminent  writers  on 
constitutional  law,  *the  constitutional  organ  of  communica- 
tion with  foreign  states.'  "  ^  The  President's  veto  message 
was  referred  to  the  House  Committee  on  Foreign  Affairs, 
but  was  never  reported  therefrom.  Even  if  the  resolutions 
had  been  repassed  over  the  veto,  it  is  doubtful  whether  there 
would  have  been  any  legal  means  of  compelling  the  Presi- 
dent or  his  Secretary  of  State  to  transmit  them. 

If  Congress  cannot  communicate  with  a  foreign  govern- 
ment by  means  of  a  joint  resolution  repassed  over  the  Presi- 
dent's veto,  neither  can  it  do  so  by  means  of  a  concurrent 
resolution,  for  to  such  a  resolution  the  President  need  pay 
no  attention  whatever.  This  mode,  nevertheless,  seems  to 
have  been  supposed  possible  by  the  framers  of  one  of  the 
proposed  Senate  reservations  to  the  Treaty  of  Versailles, 
which  provided  that  **  notice  of  withdrawal  by  the  United 
States   (from  the  League  of  Nations)  may  be  given  by 

*  The  act  of  Congress  of  July  27,  1789,  establishing  the  State  Department  (or 
Department  of  Foreign  Affairs,  as  it  was  then  called),  required  the  Secretary 
"to  perform  and  execute  such  duties  as  shall,  from  time  to  time,  be  enjoined 
on  or  intrusted  to  him  by  the  President, ' '  etc.,  1  Stat,  at  L.,  28. 

'Richardson,  Mess,  and  Pap.  of  the  Presidents,  VII,  431;  Hinds,  Precedents, 
II.  1024. 


THE  BA'SIS  AND  MODES  OF  CONTROL  25 

a  concurrent  resolution  of  the  Congress  of  the  United 
States.''^ 

The  President  or  his  Secretary  of  State,  however,  may 
voluntarily  act  as  a  transmitting  agent  for  communications 
between  Congress  and  foreign  governments.^  Congress 
may  also  ask  the  President  to  undertake  diplomatic  or 
treaty  negotiations,  and  the  request  may  have  moral, 
although  not  legal,  weight  in  determining  the  Chief  Execu- 
tive's action.^  Moreover,  there  is  nothing  directly  to  pre- 
vent communications  being  carried  on  between  Congress, 
or  either  branch  thereof,  through  its  presiding  officers,  or 
officer,  and  the  minister  of  a  foreign  government  accredited 
to  the  United  States,  independently  of  the  President  and 
the  State  Department;  and  this  has  sometimes  been  done.* 
If  such  communications  were  obnoxious  to  the  President, 
however,  the  recall  of  the  foreign  minister  by  his  govern- 
ment could  be  requested ;  and  if  compliance  with  this  request 
were  not  forthcoming,  he  could  be  dismissed  by  order  of 

"Cong.  Record,  March  19,  1920,  p.  4899.  In  this  connection  it  may  be 
mentioned  that  unauthorized  communication  with  foreign  governments  was 
made  a  criminal  offense  by  the  Logan  Act  of  Jan.  30,  1799 ;  R.  S.  sect.  5335. 

■Thus,  in  1908,  House  and  Senate  resolutions  expressing  sympathy  and  sor- 
row in  view  of  the  assassination  of  the  King  and  Crown  Prince  of  Portugal 
were  transmitted  by  the  Secretary  of  State  to  the  Portuguese  Government, 
and  the  answer  of  the  Portuguese  Foreign  Minister  transmitted  by  the  Secre- 
tary of  State  to  the  Speaker  of  the  House.  House  docs.  741  and  754  and  Sen. 
doc.  317,  all  of  the  60th  Cong.,  1st  sess.  Again,  in  1912,  the  Secretary  of 
State  transmitted  a  note  of  the  Chinese  minister  expressing  thanks  for  a 
message  of  congratulation  to  the  people  of  China,  as  embodied  in  a  Congres- 
sional concurrent  resolution.  37  Stat,  at  L.,  1460;  House  rept.  368,  and  Sen. 
doc.  641,  both  of  the  62nd  Cong.,  2nd  sess.  In  1919  the  State  Department 
transmitted  to  the  Senate  a  resolution  of  the  National  Assembly  of  Panama 
asking  that  body  not  to  change  the  name  of  the  trans-isthmian  canal  from 
Panama  to  Roosevelt.  House  doc.  67,  66th  Cong.,  1st  sess.  For  other  instances 
of  a  similar  character,  see  Hinds,  Precedents,  II,  1022,  1025. 

•For  example,  by  a  joint  resolution  of  March  2,  1895,  Congress  requested 
the  President  to  insist  upon  the  payment  by  Spain  of  the  Mora  claim. 

*Thus,  on  June  4,  1920,  the  Vice  President  laid  before  the  Senate  a  com- 
munication from  the  Italian  ambassador  at  Washington  on  behalf  of  his 
government,  directed  to  the  Vice  President  as  president  of  the  Senate,  and 
expressing  appreciation  for  the  Senate  resolution  commemorating  the  anni- 
versary of  Italy's  entrance  into  the  war.  Cong.  Record,  June  4,  1920,  p. 
9104.  A  similar  instance  occurred  in  1894  when  the  Speaker  laid  before  the 
House  a  cable  dispatch  from  the  Government  of  France  to  the  Speaker  acknowl- 
edging the  action  of  the  House  in  passing  a  resolution  of  sorrow  at  the 
assassination  of  President  Camot.    Hinds,  Precedents,  II,  1025. 


26  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  President.  The  same  fate  might  also  befall  a  foreign 
minister  who  should  hold  personal  conferences  with  indi- 
vidual Senators  about  official  matters,  if  this  were  distaste- 
ful to  the  President.^  The  President  would  also  have  the 
right  to  object  in  the  same  decisive  manner  to  any  attempt 
on  the  part  of  a  diplomatic  representative  of  a  foreign  gov- 
ernment to  communicate  directly  with  the  American  people 
about  official  matters.^  In  all  these  cases,  the  foreign  min- 
ister would  be  guilty  of  the  offense  of  attempting  to  com- 
municate directly  with  persons  with  whom  he  can  properly 
have  no  official  dealings  and  of  ignoring  to  that  extent  the 
President  with  whom  alone  he  has  the  right  of  communi- 
cating on  official  subjects. 

Where,  however,  no  exchange  of  views  is  involved.  Con- 
gress may,  in  effect,  communicate  with  a  foreign  govern- 
ment without  the  intermediation  of  the  President  or  State 
Department,  by  a  public  announcement  transmitted  through 
the  ordinary  channels  of  publicity.  An  example  is  the  dec- 
laration of  war,  which  usually  comes  only  after  direct 
diplomatic  communication  with  the  government  against 
which  it  is  directed  has  been  severed.  The  government 
affected  naturally  takes  cognizance  of  the  declaration  with- 
out special  notification.^ 

*0n  December  14,  1911,  Senator  Bacon  said:  "Within  the  last  two  months, 
I  have  had  a  conference  and  quite  a  discussion  with  the  Russian  ambassador 
regarding  negotiations  looking  to  a  new  treaty  with  Bussia."  Cong.  Record, 
Vol.  48,  p.  372. 

*  A  notorious  offender  in  various  respects  was  M.  Genet,  the  French  minister, 
who  was  recalled  at  the  request  of  the  Washington  administration.  Moore, 
Digest  of  Internat.  Law,  IV,  485-8;  680-1.  In  his  first  Lusitania  note,  May 
13,  1915,  the  Secretary  of  State,  on  behalf  of  the  President,  called  the  atten- 
tion of  the  German  Government  to  the  '  *  surprising  irregularity  of  a  communi- 
cation from  the  Imperial  German  Embassy  at  Washington  addressed  to  the 
people  of  the  United  States  through  the  newspapers."  For  another  instance 
of  the  same  sort  see  Moore,  op.  cit.,  IV,  682. 

•  This  was  done  also  in  the  case  of  the  Congressional  joint  resolution  of  April 
20,  1898,  authorizing  intervention  in  Cuba.  This  was  in  the  nature  of  an 
ultimatum  or  virtual  declaration  of  war.  Before  it  could  be  communicated  to 
the  Spanish  Government  through  our  minister  at  Madrid,  he  received  a  note 
from  that  Government,  stating  that,  in  consequence  of  the  Congressional 
ultimatum,  all  diplomatic  relations  were  severed.    Moore,  op.  cit.,  VII,  170. 


wW^ 


THE  BASIS  AND  MODES  OP  CONTROL  27 

REFERENCES 

American  Foreign  Policy,  Publication  No.  17,  Division  of  Intercourse  and 

Publicity,  Carnegie  Endowment  for  International  Peace,  1920. 
Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 

1917),  33-46;  126. 
Moore,   J.   B.,  Digest   of  International   Law    (Washington,   1906),   IV, 

680-726. 
Robinson,  E.  E.,  and  West,  V.  J.,  The  Foreign  PoUcy  of  Woodrow  Wilson, 

1913-17  (New  York,  1918). 
Scott,  J.  B.  [ed.],  President  Wilson's  Foreign  Policy  (New  York,  1918). 
Wright,  Q.,  "The  Control  of  Foreign  Relations,"  American  Political  Science 

Review,  XV,  1-26  (Feb.,  1921). 


V 


CHAPTER  n 

THE  STATES  AND  FOREIGN  RELATIONS 

THE  conduct  of  a  nation's  foreign  relations  may  be 
affected  to  a  considerable  extent  by  the  form  and 
character  of  internal  governmental  organization.  SpeaKing 
generally,  an  energetic  and  effective  foreign  policy  is  pos- 
sible for  a  nation  in  proportion  as  its  government  exhibits 
unity  and  coherence.  This  is  true  with  reference  to  the  rela- 
tions not  only  between  the  departments  of  the  central 
government,  but  between  the  central  government  and  the 
local  or  state  governments.  In  countries  whose  govern- 
ment is  based  on  the  federal  plan,  therefore,  an  important 
question  to  be  considered  is  the  amount,  if  any,  of  control 
over  foreign  relations  which  is  assigned  to  the  divisional 
governments.  The  tendency  in  federal,  and  even  in  con- 
federate, governments  is  to  restrict  within  very  narrow 
limits,  if  not  absolutely  to  prohibit,  any  direct  control  of 
the  states,  or  other  divisions,  over  foreign  relations. 

Under  the  Articles  of  Confederation  the  diplomatic,  war, 
and  treaty  powers  were,  in  express  terms,  vested  in  the 
central  government,  and  the  powers  of  the  states  in  those 
respects  were  restricted  within  narrow  limits.  The  Articles, 
however,  preserved  the  legislative  power  of  the  states  over 
foreign  commerce,  even  as  against  the  power  of  the  central 
government  to  enter  into  commercial  treaties,  and  in  prac- 
tice this  operated  as  a  serious  limitation  upon  the  central 
government's  control  over  foreign  relations.  The  con- 
fusion resulting  from  divided  jurisdiction  over  commerce 
was  one  of  the  principal  difficulties  leading  to  the  adoption 
of  the  Constitution. 

28 


THE  STATES  AND  li^OREIGN  RELATIONS  29 

DIRBOT  INPLUENOB 

The  experience  gained  under  the  Articles  led  to  the  plac- 
ing in  the  Constitution  of  strict  limitations  upon  the  power 
of  the  states  in  connection  with  foreign  relations.  The 
states  were  absolutely  prohibited  from  making  treaties, 
and  treaties  made  under  the  authority  of  the  United  States 
were  declared  to  be  the  supreme  law  of  the  land,  notwith- 
standing anything  to  the  contrary  in  the  laws  of  any  state. 
Moreover,  except  with  the  consent  of  Congress,  the  states 
were  prohibited  from  entering  into  any  agreement  or  com- 
pact with  a  foreign  power  and  from  engaging  in  war,  unless 
in  imminent  danger  of  invasion.^  The  term  **war*' 
properly  denotes  an  armed  conflict  between  nations  and,  as 
here  used,  probably  refers  to  danger  from  a  foreign  source 
or  from  Indians.^ 

In  1839  our  relations  with  Great  Britain  became  strained 
on  account  of  a  dispute  over  the  location  of  the  boundary 
line  between  Maine  and  Canada.  Maine  and  New  Bruns- 
wick marched  opposing  forces  into  the  disputed  territory, 
bringing  on  what  is  known  as  the  *^ Aroostook  War.*'  The 
United  States  and  Great  Britain,  however,  entered  into 
negotiations  for  a  treaty  to  settle  the  dispute.  **It  was 
deemed  necessary  on  the  part  of  our  Government  to  secure 
the  cooperation  and  concurrence  of  Maine,  so  far  as  such 
settlement  might  involve  a  cession  of  her  sovereignty  and 
jurisdiction  as  title  to  territory  claimed  by  her,  and  of 
Massachusetts,  so  far  as  it  might  involve  a  cession  of  title 
to  lands  held  by  her.  Both  Maine  and  Massachusetts 
appointed  commissioners  to  act  with  the  Secretary  of  State 

*  The  powers  of  the  states,  moreover,  are  restricted  with  reference  to  the 
regulation  of  foreign  commerce  and  the  levying  of  import  and  export  duties. 
It  should  be  mentioned,  too,  in  this  connection  that  the  state  courts  are 
excluded  from  jurisdiction  in  cases  to  which  foreign  ambassadors,  other  public 
ministers,  or  consuls  are  parties. 

"  Willoughby,  Constitutional  Law  of  the  United  States,  II,  1239.  Chief  Jus- 
tice Taney,  in  Luther  v.  Borden  (7  How.,  1)  declared  that  Rhode  Island, 
during  Dorr's  Rebellion,  was  in  a  state  of  war;  but  this  was  a  misuse  of  the 
term,  as  was  pointed  out  by  Justice  Woodbury  in  his  dissenting  opinion. 


30  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

and,  after  much  negotiation,  the  claims  of  the  two  states 
were  adjusted  and  the  disputed  questions  of  boundary 
settled."  ^  The  result  was  the  Webster- Ashburton  treaty 
of  1842,  wherein  (Art.  V)  the  United  States  agreed  to 
receive  and  pay  over  to  Maine  and  Massachusetts  their 
share  of  the  ^* disputed  territory  fund,**  and  also  to  com- 
pensate those  states  by  the  payment  of  a  further  sum  of 
money  on  account  of  their  assent  to  the  boundary  line  fixed 
by  the  treaty.^ 

Although  the  claims  of  the  two  states  were  thus  recog- 
nized by  the  treaty,  they  were  not  adjusted  directly  by  the 
states,  but  rather  by  the  Government  of  the  United  States 
acting  in  their  behalf.  An  American  writer  suggests  that 
Webster  did  not  consider  the  cooperation  of  the  state 
authorities  a  constitutional  necessity,  but  merely  thought 
it  expedient  from  a  political  standpoint  that  the  opinion  of 
these  states  should  be  considered.^  This  author  admits, 
however,  that  the  states  might  possibly  have  international 
dealings  with  reference  to  such  an  unimportant  matter  as 
the  administration  of  fishing  upon  boundary  waters.*  In 
this  connection  it  has  been  suggested  by  another  writer  that 
a  state  might  enter  into  an  agreement  with  Canada  or  a 
bordering  Canadian  province  to  regulate  fisheries  in  their 
contiguous  waters,ln  the  absence  of  a  formal  treaty  by  the 
United  States  covering  the  subject.  **May  there  not 
properly  be,'*  this  writer  asks,  *^an  autonomy  in  local  exter- 
nal affairs,  at  least  as  to  the  states  bordering  on  Canada  or 
Mexico,  just  as  there  is  a  local  autonomy  in  matters  purely 
domestic?"^ 

The  question  came  before  the  Supreme  Court  in  1840  as 
to  whether  the  surrender  to  Canadian  authorities  by  the 

*  Ft.  Leavenworth  B.  B.  Co.  v.  Lowe,  114  U.  S.,  541,  quoting  Webster,  Works, 
V,  99;  ibid,  VI,  273. 

"  Malloy,  Treaties,  etc.,  I,  654. 

•  Willoughby,  op.  cit.,  I,  509. 

*  Ibid,  I,  508,  note  23. 

•  J.  F.  Barrett,  '  *  International  Agreements  Without  the  Advice  and  Consent 
of  the  Senate,"  Tale  Law  Journal,  XV,  23,  27  (Nov.,  1905).  But  see,  contra, 
Butler,  Treaty-Making  Power,  I,  sect.  123. 


THE  STATES  AND  FOREIGN  RELATIONS  31 

governor  of  Vermont  of  a  fugitive  from  justice  was  within 
his  constitutional  power.  No  judgment  was  rendered  in 
the  case,  since  the  court  was  equally  divided  on  the  ques- 
tion of  jurisdiction;  but  a  majority  of  the  judges,  including 
Chief  Justice  Taney,  were  of  the  opinion  that  the  governor 
did  not  have  the  power  to  deliver  up  the  fugitive  to  a  for- 
eign government.  In  his  opinion  Taney  pointed  out  that 
such  a  delivery  involves  an  agreement  with  a  foreign 
government,  which  the  states  are  not  competent  to  make 
without  the  consent  of  Congress.^  Many  years  later  the 
same  court  declared,  obiter,  that  **  there  can  be  little  doubt 
as  to  the  soundness  of  the  opinion  of  Chief  Justice  Taney 
that  the  power  exercised  by  the  governor  of  Vermont  is  a 
part  of  the  foreign  intercourse  of  this  country,  which  has 
undoubtedly  been  conferred  upon  the  Federal  Government ; 
and  that  it  is  clearly  included  in  the  treaty-making  power, 
and  the  corresponding  power  of  appointing  and  receiving 
ambassadors  and  other  public  ministers.  There  is  no  neces- 
sity for  the  states  to  enter  upon  the  relations  with  foreign 
governments,  which  are  necessarily  implied  in  the  extradi- 
tion of  fugitives  from  justice  found  within  the  limits  of 
the  state,  as  there  is  none  why  they  should  in  their  own 
name  make  demand  upon  foreign  nations  for  the  surrender 
of  such  fugitives.  At  this  time  of  day  and  after  the  re- 
peated examinations  which  have  been  made  by  this  court 
into  the  powers  of  the  Federal  Government  to  deal  with  all 
such  international  questions  exclusively,  it  can  hardly  be 
admitted  that,  even  in  the  absence  of  treaties  or  acts  of 
Congress  on  the  subject,  the  extradition  of  a  fugitive  from 
justice  can  become  the  subject  of  negotiation  between  a 
state  of  the  Union  and  a  foreign  government.  ^  *  ^ 

The  governor  of  a  state  from  which  a  fugitive  from  jus- 
tice has  fled  to  a  foreign  country  must  ordinarily  act 
through  the  Secretary  of  State  at  Washington  in  demand- 

*  Holmes  v.  Jennison,  14  Pet.,  540. 

'United  States  v.  Eauscher,  119  U.  S.,  407  (1886). 


32  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ing  from  such  government  the  return  of  the  fugitive  in 
accordance  with  extradition  treaties  between  the  two  coun- 
tries. This,  however,  does  not  hold  where  there  are  acts 
of  Congress  or  treaties  of  the  United  States  expressly 
authorizing  extradition  proceedings  to  be  conducted  by  the 
governor  of  a  state  directly  with  the  authorities  of  a  for- 
eign government.  Thus,  our  treaty  of  1861  with  Mexico 
empowered  the  chief  executives  of  the  border  states  and 
territories  to  make  requisitions  and  to  grant  extradition  in 
certain  cases.^  Again,  our  extradition  conventions  with 
Denmark  and  the  Netherlands  provided  that  application  for 
the  surrender  of  a  criminal  may  be  made  directly  to  or  by 
the  governor  or  chief  magistrate  of  the  island  possession 
or  colony  of  the  respective  countries.^  In  such  cases,  it 
may  be  said  that  the  chief  executive  of  the  state  or  territory 
is  acting  primarily  as  the  agent  of  the  United  States  Gov- 
ernment. 

In  general,  however,  direct  contact  of  the  state  govern- 
ments with  foreign  governments  is,  under  the  Constitution, 
reduced  to  a  negligible  quantity.  The  ruling  doctrine  on 
this  matter  has  been  laid  down  by  the  Supreme  Court  in  a 
number  of  cases.  Thus,  in  the  Arjona  case,  wherein  was 
upheld  a  Federal  statute  punishing  the  counterfeiting  in 
the  United  States  of  the  securities  of  foreign  nations,  the 
Court  said:  **The  Government  of  the  United  States  has 
been  vested  exclusively  with  the  power  of  representing  the 
nation  in  all  its  intercourse  with  foreign  countries.  .  .  . 
Thus  all  official  intercourse  between  a  state  and  foreign- 
nations  is  prevented,  and  exclusive  authority  for  that  pur- 
pose given  to  the  United  States.'*  ^  Again,  in  the  Chinese 
exclusion  case,  the  Court  said:  **For  local  interests,  the 
several  states  of  the  Union  exist;  but  for  international 
purposes,  embracing  our  relations  with  foreign  nations, 

*  Malloy,  op.  cit.,  1126.     This  provision  was  renewed  by  the  treaty  of  1899. 
Ibid.,  1188.    Cf.  Moore,  Extradition,  I,  53-78. 

»  Malloy,  op.  cit.,  395,  1272. 

•  United  States  v.  Arjona,  120  U.  S.,  479. 


THE  STATES  AND  FOREIGN  RELATIONS  33 

we  are  but  one  people,  one  nation,  one  power. ' '  ^  The  same 
view  is  stated  by  the  Court  in  the  Legal  Tender  case :  **The 
United  States  is  not  only  a  government,  but  it  is  a  national 
government,  and  the  only  government  in  this  country  that 
has  the  character  of  nationality.  It  is  invested  with  power 
over  all  the  foreign  relations  of  the  country,  war,  peace 
and  negotiations  and  intercourse  with  other  nations ;  all  of 
which  are  forbidden  to  the  state  governments.*'  ^ 

INDIBECT  INFLUENCE 

Although  the  general  principle,  as  thus  laid  down  by  the 
Supreme  Court,  is  undoubtedly  correct  as  far  as  direct 
control  by  the  states  over  foreign  relations  is  concerned, 
it  is  still  possible  for  the  states  to  take  action  which  will 
indirectly  affect  such  relations.  The  extent  of  this  indirect 
influence  may,  of  course,  vary  considerably.  State  legisla- 
tures not  infrequently  pass  resolutions  petitioning  Con- 
gress or  the  Executive  to  take  or  not  to  take  certain  action 
in  connection  with  our  foreign  relations,  or  expressing  con- 
gratulation or  sympathy  with  particular  foreign  countries.^ 
Such  a  resolution  is  likely  to  be  a  mere  hrutum  fulmen,  and 
is  usually  pure  buncombe.  The  feeling  is  apparently  grow- 
ing that  a  state  legislature  ought  not  thus  to  attempt  to 
take  a  hand  in  foreign  affairs,  unless,  at  all  events,  the 
situation  or  policy  aimed  at  is  deemed  peculiarly  to  affect 
the  welfare  of  the  state. 

A  more  important  method  by  which  a  state  may  indirectly 
influence  foreign  relations  is  the  taking  of  action  which  may 
purport  to  affect  the  status  of  aliens  residing  in  such  state, 
or  failure  to  take  action  for  their  protection  in  the  exercise 
of  rights  which  they  claim  under  treaties.  This  point  is 
thus  set  forth  in  a  Senate  document  relating  to  the  power 

*  Chae  Chan  Ping  v.  United  States,  130  U.  S.,  581,  606.  Cf.  Fong  Yue  Ting 
V.  United  States,  149  U.  S.,  698. 

»  Knox  V.  Lee,  12  WaU.,  457,  555. 

•Thus,  in  1897  the  Senate  of  Nebraska  adopted  a  resolution  extending  sym- 
pathy to  Cuba.    U.  S.  Senate  doc.  82,  54th  Cong.,  2nd  sess. 


34  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

of  recognition:  **A  state  of  the  Union,  although  having 
admittedly  no  power  whatever  in  foreign  relations,  may 
take  action  uncontrollable  by  the  Federal  Government,  and 
which,  if  not  properly  a  casus  belli,  might  nevertheless  as 
a  practical  matter  afford  to  some  foreign  nation  the  excuse 
of  a  declaration  of  war.  We  may  instance  the  action  which 
might  have  been  taken  by  the  state  of  Wyoming  in  relation 
to  the  Chinese  massacres,  or  the  state  of  Louisiana  in  rela- 
tion to  the  Italian  lynchings,  or  by  the  state  of  New  York 
in  its  recent  controversy  with  German  insurance  companies 
with  relation  to  the  treatment  of  its  own  insurance  com- 
panies by  Germany. ' '  ^  As  to  whether  the  action  of  the 
states  in  such  matters  is,  in  all  cases,  uncontrollable  by  the 
Federal  Government,  there  may  be  some  question.  Judg- 
ing, however,  by  the  number  of  instances  in  which  the 
nation  has  been  embroiled  in  international  difficulties  by  the 
action  or  non-action  of  states,  it  would  seem  that  no  effec- 
tive means  of  preventing  such  state  interference  has  yet 
been  devised. 

Some  of  the  difficulties  encountered  have  arisen  from  the 
failure  of  states  to  protect  aliens  against  individual  or  mob 
violence  and  to  provide  means  of  redress  for  injuries  thus 
inflicted.  Congress  could  probably  constitutionally  provide 
such  means  of  redress  through  federal  agencies,  but  it  has 
thus  far  failed  to  do  so.^  Other  difficulties  arise  from  the 
passage  of  acts  or  ordinances  by  states  or  municipalities 
which  discriminate,  or  are  alleged  to  discriminate,  against 
aliens  in  violation  of  their  treaty  rights.  Among  these 
measures  are  labor  laws,  land  laws,  and  laws  or  ordinances 
regulating  the  privilege  of  attending  the  public  schools. 
Some  have  been  declared  unconstitutional  by  the  courts  as 
in  violation  of  treaty  provisions.  Probably  the  most  con- 
spicuous of  the  state  laws  and  local  ordinances  which  have 
given  rise  to  international  difficulties  are  the  San  Francisco 

*  U.  S.  Senate  doc.  56,  54th  Cong.,  2nd  sess.,  p.  5. 
'  Baldwin  v.  Franks,  120  U.  S.,  678. 


THE  STATES  AND  FOREIGN  RELATIONS  35 

school  ordinance  and  the  California  alien  land  law,  aimed 
at  aliens  ineligible  to  citizenship.  Public  sentiment  on  the 
matter  in  California  is  strikingly  indicated  by  the  adoption 
in  1920,  through  the  popular  initiative,  and  by  a  vote  of 
three  to  one,  of  an  alien  land  law,  to  which  Japan  objected 
as  being  in  violation  of  treaty  rights.^ 

The  treaty-making  power  has  itself  at  times  sought  to 
avoid  conflicts  with  the  states  which  would  be  likely  to  arise 
from  national  regulation  of  matters  that  otherwise  would 
be  under  state  control.  Provisions  have  been  inserted  in 
treaties  which,  instead  of  purporting  directly  to  determine 

*The  action  of  the  people  of  California  in  enacting  directly  through  the 
popular  initiative  this  alien  land  law  is  an  example  of  popular  influence  in 
foreign  affairs,  exercised  in  a  somewhat  novel  fashion.  The  desirability  of 
having  the  support  of  public  opinion  in  the  conduct  of  foreign  relations  haa 
been  recognized  by  various  Presidents,  who  have  sometimes  made  direct  appeals 
to  the  people  on  behalf  of  particular  policies.  The  importance  of  public 
opinion  among  us  in  such  matters  has  also  been  recognized  by  other  govern- 
ments, as  was  illustrated  by  their  attempts  to  influence  it,  before  our  entrance 
into  the  World  War,  through  securing  control  of  newspapers  and  other  means 
of  publicity  and  propaganda.  Much  has  been  said  in  favor  of  full  publicity 
as  a  condition  of  democratic  diplomacy.  Intelligent  and  judicious  influence  by 
the  people  upon  foreign  relations  presupposes,  however,  a  considerable  amount 
of  popular  information  on  such  matters.  The  extent  of  desirable  publicity  in 
foreign  policy  is  logically  limited  by  the  extent  to  which  the  people  can  exercise 
an  effective  control,  and  that  reaches  only  to  general  policies  and  not  to 
details  or  matters  requiring  quick  decision.  Some  persons  have  advocated  a 
popular  referendum  on  the  question  of  peace  or  war  as  a  preliminary  step  to 
the  entrance  into  war  by  the  United  States.  W.  J.  Bryan  has  gone  on  record 
as  declaring  that  '  *  a  referendum  on  war  would  give  greater  assurance  of  peace 
than  any  other  provision  that  could  be  made."  (Editorial  reprinted  in  Con- 
gressional Record,  January  22,  1920,  p.  1966.)  The  delay,  however,  which 
would  ensue  before  a  decision  could  be  arrived  at,  if  such  a  plan  were  adopted, 
would  seem  alone  to  be  sufiicient  to  render  the  idea  impracticable.  Further- 
more, the  inherent  defects  of  the  control  of  foreign  policy  by  a  deliberative 
assembly  would  be  greatly  enhanced  by  the  adoption  of  such  a  plan.  Often 
there  is  no  time  for  consulting  the  popular  will  and,  even  if  it  were  done,  in 
many  cases  no  clear  answer  would  or  could  be  given.  It  would  be  difficult  to 
frame  the  issue,  for  the  manceuvers  of  the  foreign  government  would  be  an 
uncertain  and  uncontrollable  factor  in  the  situation.  The  objections  to  the 
popular  referendum  in  foreign  affairs  have  been  summed  up  as  follows :  ' '  The 
referendum  is  not  advisory  in  any  honest  sense  of  the  word,  because  the 
decision  of  the  government  must  be  composed  of  an  intricate  series  of  problems 
which  cannot  be  isolated.  On.  most  of  the  points  the  answer  is  not  yes  or  no, 
but  a  course  of  action  with  many  ramifications  of  detail.  A  government 
dependent  on  referendum  for  advice  about  every  crucial  point  could  survive 
only  in  a  world  where  magic  kept  everything  frozen  tight  while  the  referendum 
was  being  taken.  In  a  world  of  swift  action,  of  surprises,  of  intrigue,  there 
can  be  neither  safety  nor  success  for  an  administration  which  had  no  power 
to  act."     (New  Republic,  February  24,  1917,  p.  92.) 


36  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  point  in  question,  merely  constitute  an  undertaking  on 
the  part  of  our  Government  to  recommend  to  the  states 
that  the  appropriate  action  be  taken.  The  earliest  example 
of  this  is  the  treaty  of  1783  with  Great  Britain,  in  which 
(Art.  V)  it  was  agreed  that  the  Congress  of  the  Confedera- 
tion should  '  *  earnestly  recommend  to  the  legislatures  of  the 
respective  states  to  provide  for  the  restitution  of  all  es- 
tates'' of  British  subjects.^  Other  examples  may  be  found 
in  treaties  made  since  the  adoption  of  the  Constitution. 
Thus,  Article  VII  of  the  treaty  of  1853  with  France  pro- 
vided that  ^  *  as  to  the  states  of  the  Union,  by  whose  existing 
laws  aliens  are  not  permitted  to  hold  real  estate,  the  Presi- 
dent engages  to  recommend  to  them  the  passage  of  such 
laws  as  may  be  necessary  for  the  purpose  of  conferring  this 
right.'' 2 

Instances  of  this  sort  have,  however,  been  rare ;  and,  as 
has  been  pointed  out,  if  the  United  States  were  required, 
as  a  rule,  to  resort  to  such  procedure,  the  ultimate  result 
would  be  that  few  nations  would  be  willing  to  grant  us 
privileges  in  exchange  for  a  mere  promise  on  the  part  of 
our  Government  to  recommend  to  the  states  the  granting 
of  similar  concessions.^  The  courts  have  construed  the 
treaty-making  power  as  extending  to  all  matters  which  are 
appropriate  subjects  of  international  negotiation,^  and,  as 
the  Supreme  Court  declared  in  the  Arjona  case,  ^HJje 
national  government  is  .  .  .  responsible  to  foreign  nations 
for  all  violations  by  the  United  States  of  their  international 
obligations."^  This  being  the  case,  it  follows  that  the 
National  Government  must  have  power  commensurate  with 
its  responsibility.  Ultimately,  by  Congressional  action,  or 
by  constitutional  amendment  if  necessary,  means  of  control 

*  Malloy,  Treaties,  etc.,  I,  588. 

*Ibid.,  I,  531.  Cf.  a  similar  provision  in  the  treaty  of  1871  with  Great 
Britain,  ibid.,  I,  711. 

'Crandall,  Treaties,  Their  MaTcing  and  Enforcement,  267. 

*De  Geofroy  v.  Biggs,  133  U.  S.,  256,  266-7.  Cf.  Missouri  v.  Holland, 
252  U.  S.,  416. 

» United  States  v.  Arjona,  120  U.  S.,  479. 


THE  STATES  AND  FOREIGN  RELATIONS  37 

must  be  provided  for  the  full  preservation  of  treaty  rights 
'  by  the  National  Government.  At  the  same  time,  care  should 
be  taken,  as  far  as  possible,  that  no  treaty  engagements 
be  entered  into  whose  execution  will  arouse  the  deep-seated 
hostility  of  the  great  majority  of  the  people  in  particular 
states. 

REFERENCES 

Crandall,  S.  B.,  Treaties,  Their  Making  and  Enforcement,  pp.  141-145  and 

chap.  XVI. 
Brnce,  A.  A.,  "The  Compacts  and  Agreements  of  States  with  One  Another 

and  with  Foreign  Powers,"  Minnesota  Law  Review,  II,  500-516  (June, 

1918). 
Barrett,  J.  F.,  "International  Agreements  Without  the  Advice  and  Consent 

of  the  Senate,"  Yale  Law  Journal,  XV,  18-27  (Nov.,  1905). 
Hall,  J.  P.,  and  Hyde,  C.  C,  "State  Interference  with  the  Enforcement  of 

Treaties,"  Proceedings  of  the  Academg  of  Political  Science,  vol.  VII, 

pp.  548-564. 


I 


CHAPTER  m 

THE  DEPARTMENT   OF  STATE 

IN  the  conduct  of  foreign  relations,  the  President,  al- 
though ultimately  responsible  to  the  people  for  the 
general  success  or  failure  of  policies  pursued  and  efforts 
made,  is  unable,  of  course,  to  give  his  personal  attention  to 
any  questions  of  policy  except  those  which  he  deems  to  be 
the  most  important  and  momentous.  For  handling  the 
great  mass  of  routine  matters,  and  even  for  the  determina- 
tion of  many  questions  of  policy  which  are  of  considerable 
importance,  he  is  dependent  upon  the  assistance  of  the 
agencies  supplied  for  that  purpose.  These  agencies  are, 
principally,  the  department  of  state,  the  diplomatic  service, 
and  the  consular  service.  The  three  are,  in  reality,  parts 
of  one  system,  which  has  its  head  office  in  Washington  and 
its  agents  in  every  part  of  the  world.  For  purposes  of 
convenience,  however,  they  may  be  considered  separately. 

HISTOKICAL  DEVELOPMENT 

Although  the  Constitution  definitely  provides  for  the 
appointment  by  the  President  of  diplomatic  and  consular 
agents,  no  specific  provision  is  made  in  that  instrument  for 
the  creation  of  an  executive  department  of  the  government 
to  handle  foreign  affairs.  That  various  executive  depart- 
ments would  be  created  was,  however,  implied  in  the  stipu- 
lations that  the  President  ^*may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive  de- 
partments, upon  any  subject  relating  to  the  duties  of  their 
respective  offices''  and  that  Congress  may  vest  the  appoint- 
ment of  inferior  officers  in  the  President  alone  or  in  the 

38 


THE  DEPARTMENT  OF  STATE  89 

heads  of  departments.  Except  negatively,  through  his  veto 
power,  the  President  has  no  legal  control  over  the  creation 
of  such  departments.  They  can  be  established  only  by  Con- 
gressional statute ;  and  Congress  proceeded  to  exercise  this 
power  very  shortly  after  the  government  went  into  opera- 
tion under  the  present  Constitution.  An  act  of  July  27, 
1789,  created  a  department  of  foreign  affairs,  at  whose  head 
was  placed  a  secretary  of  foreign  affairs.  This  officer  was, 
of  course,  to  be  appointed  by  the  President  with  the  advice 
and  consent  of  the  Senate,  but  considerable  debate  arose  in 
Congress  as  to  whether  the  President  should  also  have  the 
power  of  removing  him  from  office.  Upon  this  point  the 
Constitution  was  silent.  Some  members  of  Congress  were 
of  the  opinion  that,  on  the  analogy  of  the  method  of  ap- 
pointment, the  President  should  have  the  power  to  remove 
only  with  the  consent  of  the  Senate.  James  Madison 
strongly  opposed  this  view,  on  the  ground  that  such  a  plan 
might  have  the  effect  of  making  an  administrative  officer 
who  was  supposed  to  be  subordinate  to  the  President  in 
reality  independent  of  him.  Since  the  President  must  bear 
the  responsibility  for  the  conduct  of  foreign  relations,  he 
should  have  power  over  the  head  of  the  department  of 
foreign  affairs,  without  interference,  other  than  by  way 
of  advice,  from  the  Senate.  This  view  finally  prevailed, 
but  it  was  considered  improper  expressly  to  confer  upon 
the  President  the  power  of  removal,  since  this  might  be 
construed  to  imply  that  he  had  no  such  authority  under  his 
general  executive  power,  unless  conferred  by  statute.  Con- 
sequently, as  finally  passed,  the  act  merely  implied  the 
existence  of  the  power  of  removal  in  the  President  without 
expressly  conferring  it. 

The  duties  of  the  secretary  for  the  department  of  foreign 
affairs  and  his  relation  to  the  President  were  specified  in 
the  act  as  follows :  * '  To  perform  and  execute  such  duties  as 
shall,  from  time  to  time,  be  enjoined  on  or  intrusted  to  him 
by  the  President  of  the  United  States,  agreeable  to  the 


40  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Constitution,  relative  to  correspondence,  commissions,  or 
instructions,  to  or  with  public  ministers  or  consuls,  from 
the  United  States,  or  to  negotiations  with  public  ministers 
from  foreign  states  or  princes,  or  to  memorials  or  other 
applications  from  foreign  public  ministers,  or  other  for- 
eigners, or  to  such  other  matters  respecting  foreign  affairs 
as  the  President  of  the  United"  States  shall  assign  to  the 
said  department,  and  furthermore,  that  the  said  principal 
officer  shall  conduct  the  business  of  the  said  department  in 
such  manner  as  the  President  of  the  United  States  shall, 
from  time  to  time,  order  or  instruct. ' '  ^ 

After  the  establishment  of  the  original  executive  depart- 
ments it  was  found  that  there  were  certain  necessary  ex- 
ecutive matters  which  did  not  fall  within  the  assigned  field 
of  any  of  the  departments.  They  were  such  matters  as  are 
ordinarily  attended  to  by  the  Home  Secretaiy  in  other  gov- 
ernments. It  was  decided,  however,  not  to  create  a  separate 
home  department,  and  in  September,  1789,  these  duties  in 
relation  to  home  affairs  were  imposed  upon  the  depart- 
ment for  foreign  affairs,  and  the  name  of  the  department 
was  changed  to  ** department  of  state*'  and  that  of  the 
chief  officer  in  the  department  to  *^ secretary  of  state." 
These  duties  relating  to  home  affairs  included  at  first  the 
preservation  and  promulgation  of  the  laws,  the  keeping  of 
the  great  seal  and  the  official  records  of  the  Government, 
and  the  attestation  of  commissions  and  proclamations  by 
affixing  the  seal  to  them.  Shortly  afterwards,  further 
duties  connected  with  home  affairs  were  assigned  to  the 
department  of  state,  notably  those  connected  with  patents, 
copyrights,  the  census,  and  supervision  of  the  territories. 
These  last-mentioned  functions  were,  however,  transferred 
to  the  department  of  the  interior  upon  its  creation  in  1849. 
The  duties  relating  to  home  affairs  still  retained  by  the 
department  of  state  include  those  connected  with  the  elec- 
tion of  the  President  and  Vice  President,  the  adoption  of 

*  1  Stat,  at  L.,  28. 


THE  DEPARTMENT  OF  STATE  41 

amendments  to  the  constitution,  and  the  custody  of  the 
seals  and  archives  of  the  Government.  The  secretary  of 
state  also  publishes  the  laws  and  resolutions  of  Congress 
and  acts  as  the  medium  of  correspondence  between  the 
President  and  the  state  governors.  These  functions  are 
purely  formal.  They  add  no  prestige  or  influence  to  the 
office  of  secretary  of  state  and  might,  without  loss,  be  trans- 
ferred to  the  department  of  the  interior. 

The  first  secretary  of  state  appointed  by  President  Wash- 
ington after  the  creation  of  the  department  was  Thomas 
Jefferson,  and  the  subsequent  occupants  of  the  office  include 
many  of  the  most  distinguished  statesmen  of  the  country, 
notably  Marshall,  Madison,  Monroe,  J.  Q.  Adams,  Clay, 
Webster,  Calhoun,  Marcy,  Blaine,  Olney,  Hay,  and  Root. 
Many  of  the  secretaries  had,  before  their  appointment, 
rendered  eminent  service  in  the  halls  of  legislation  and  as 
diplomatic  representatives  of  their  country.  Six  of  them 
subsequently  became  President  of  the  United  States. 


THE  OFFICE  OF  SECRETAEY 

The  office  of  secretary  of  state  has,  at  times,  been  one  of 
great  political  importance,  and  has  occasionally  even  over- 
shadowed, to  some  extent,  that  of  Presideilt.  Although  the 
secretary  is,  of  course,  legally  the  subordinate  of  the  Presi- 
dent and  entirely  responsible  to  him  for  his  acts,  neverthe- 
less in  practice  the  department  chief  may,  through  his 
dominating  personality,  be  the  determining  factor  in  the 
control  of  foreign  relations.  Although  the  President 
officially,  receives  diplomatic  representatives  accredited  to 
this  Government,  he  does  not,  as  a  rule,  hold  communica- 
tions directly  with  such  representatives  on  official  matters. 
On  the  contrary,  such  communications  regularly  pass 
through  the  hands  of  the  secretary.  While  the  secretary 
may  thus  act  as  the  medium  of  communication  between  the 
President  and  the  diplomatic  representatives  of  other  coun- 


42   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tries,  most  matters,  unless  of  unusual  importance,  are 
handled  finally  by  the  secretary  himself.  Since  the  ultimate 
responsibility,  however,  rests  upon  the  President,  he  may, 
when  foreign  relations  become  especially  important,  take 
their  conduct  largely  into  his  own  hands. 

The  secretary  of  state  has  assumed  a  rather  vague  and 
ill-defined  priority  over  the  other  members  of  the  Presi- 
dent's cabinet.  In  the  compensation  which  he  receives  and 
in  his  legal  status  and  powers,  he  has  no  superiority  over 
them;  he  does  not  occupy  a  position  corresponding  to  that 
of  the  prime  minister  in  England  and  other  countries.  But, 
on  account  of  the  delicate  nature  of  the  duties  which  he  is 
called  upon  to  perform,  he  usually  enjoys  a  more  confiden- 
tial relation  with  the  President  than  do  other  members  of 
the  cabinet.  He  occupies  a  seat  immediately  at  the  Presi- 
dent's right  at  cabinet  meetings.  During  the  period  of  the 
** Virginia  dynasty,''  three  secretaries  of  state  passed 
from  that  office  to  the  presidency,  and  this  gave  rise  to 
a  popular  impression,  which  long  prevailed,  that  the 
secretaryship  forms  a  stepping-stone  to  the  presidency.  It 
is  usual  in  Congressional  acts  to  enumerate  the  secretary- 
ship of  state  first  among  the  cabinet  offices,  and  by  act  of 
1886  Congress  has  provided  that,  in  case  of  vacancy  in  the 
offices  of  both  President  and  Vice  President,  the  succession 
to  the  presidency  shall  pass  to  the  various  members  of  the 
cabinet,  beginning  with  the  secretary  of  state.  If  a  Presi- 
dent or  Vice  President  resigns  from  office,  his  resignation 
should  be  sent  to  the  secretary  of  state.  In  all  matters  of 
I  ceremonial  procedure  the  secretary  of  state  takes  priority 
over  the  other  members  of  the  cabinet.  Although  legally 
he  has,  of  course,  no  control  over  the  appointment  of  the 
other  members  of  the  cabinet,  in  practice  he  is  sometimes 
appointed  first  by  the  President  from  among  the  leading 
men  of  his  party  and  is  then  consulted  in  the  appointment 
of  the  other  department  heads. 

The  secretary  of  state  conducts  negotiations  with  foreign 


THE  DEPARTMENT  OF  STATE  43 

countries  either  through  the  diplomatic  representatives  of 
those  countries  accredited  to  the  United  States  or  through 
the  American  representatives  stationed  abroad.  The  choice 
between  these  two  methods  rests  with  the  nation  which 
takes  the  initiative  in  the  conduct  of  negotiations.  Ordi- 
narily, it  will  choose  to  have  them  carried  on  at  its  own 
capital. 

DEPARTMENTAL  ORGANIZATION 

The  secretary  of  state  not  only  conducts  foreign  relations 
through  the  channels  indicated,  but  also  acts  as  the  central 
directing  authority  over  officers  and  employees  of  the  de- 
partment. Originally  the  department  consisted,  besides  the 
secretary,  of  only  two  clerks,  and  there  was  little  or  no 
differentiation  of  function  between  them.  Gradually,  how- 
ever, as  the  work  increased,  the  number  of  clerks  grew,  and 
each  clerk  was  assigned  to  some  particular  group  of  duties. 
This  differentiation  or  division  of  labor  constituted,  in  em- 
bryo, that  classification  of  the  work  of  the  department  which 
later  brought  into  existence  the  various  bureaus.  There 
developed,  at  the  same  time,  a  need  of  greater  integra- 
tion through  more  general  oversight  and  direction  than 
could  be  furnished  by  the  secretary  alone.  Consequently, 
the  offices  of  assistant  secretary  of  state  and  second  and 
third  assistant  secretaries  were  created  by  acts  of  Congress 
passed  in  1853,  1866,  and  1874  respectively.  The  assistant 
secretaries  are  appointed  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate.  But  the  duties  of  over- 
sight and  direction  which  they  exercise  are  such  as  are  as- 
signed to  them  by  the  secretary  of  state,  and  depend  largely 
upon  the  character,  attainments,  and  experience  of  the  res- 
pective occupants  of  these  offices.  Until  recently,  the  assist- 
ant secretary  has  usually  succeeded  to  the  office  of  acting 
secretary  when  the  head  of  the  department  is  absent,  and, 
when  so  acting,  he  has  the  same  legal  powers  as  the  secre- 


44   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tary.  In  consequence  he  has  usually  been  considered  a  po- 
litical officer,  who  should  have  the  same  party  affiliation  as 
the  President  and  secretary;  while,  on  the  other  hand,  the 
second  and  third  assistant  secretaries  have  come  to  be  re- 
garded as  permanent  officials  whose  tenure  ought  not  to  be, 
and  ordinarily  will  not  be,  affected  by  a  change  in  party 
control.  This  difference  among  the  three  assistant  secre- 
taries in  the  matter  of  tenure  seems  proper  in  view  of  the 
difference  in  their  functions.  The  assistant  secretary  does 
not  usually  specialize,  but  exercises  general  oversight  under 
the  secretary,  while  the  second  and  third  assistant  secre- 
taries exercise  administrative  supervision  over  particular 
bureaus  assigned  to  them.  In  addition  to  the  three  assist- 
ants, attempts  have  been  made  from  time  to  time  to  secure 
the  creation  in  the  department  of  a  permanent  undersecre- 
tary of  state  to  exercise  functions  analogous  to  those  of  the 
chief  of  staff  in  the  war  department.  As  a  result  of  these 
efforts,  the  office  of  undersecretary  has  now  been  virtually 
established  in  the  department.  This  was  brought  about,  not 
through  any  act  expressly  creating  the  office,  but,  in  recent 
appropriation  acts  of  Congress,  the  title  of  the  office  of 
counselor,  originally  established  in  1909,  has  been  changed 
to  undersecretary  of  state. 

There  is  also  in  the  department  a  chief  clerk,  who  is  a 
part  of  the  general  administration  of  the  department  and 
exercises  supervision  over  the  other  clerks  in  certain  mat- 
ters of  a  routine  character.  Much  of  the  work  of  the  depart- 
ment is  classified  under  certain  heads  and  assigned  to  a 
number  of  bureaus,  over  each  of  which  is  a  chief,  appointed 
by  the  secretary.  These  bureaus  are  created  under  the  au- 
thority of  acts  of  Congress,  and  their  number  and  titles  are 
changed  from  time  to  time.  The  functions  of  the  depart- 
ment relate  partly  to  foreign  affairs  and  partly  to  home 
affairs,  and  this  division  is  naturally  reflected  in  the  organ- 
ization of  bureaus.  The  work  of  some,  such  as  the  diplo- 
matic and  consular  bureaus,  relates  directly  and  solely  to 


THE  DEPARTMENT  OF  STATE  45 

foreign  affairs,  while  that  of  others,  such  as  the  bureau  of 
rolls  and  library,  and  that  of  indexes  and  archives,  is  for 
the  most  part  concerned  with  what  may  be  called  home 
affairs.  The  titles  of  most  of  the  bureaus  indicate  in  a 
general  way  the  nature  of  the  work  assigned  to  them. 
The  diplomatic  and  consular  bureaus  have  charge  of  cor- 
respondence of  an  administrative  character  with  the  mem- 
bers of  the  diplomatic  and  consular  services  respectively. 
The  consular  bureau  also  keeps  an  efficiency  record  of 
members  of  the  consular  service,  receives  the  inspection 
reports  of  the  consuls-general-at-large,  and  furnishes 
facilities  for  giving  a  month's  preliminary  instruction  to 
all  newly  appointed  consular  officers.^  The  bureau  of 
appointments  is  charged  with  such  matters  as  the  prep- 
aration of  exequaturs  and  warrants  of  extradition,  the 
receipt  of  applications  for  office,  the  holding  of  entrance 
examinations  for  the  foreign  service.  It  also  keeps  an  effi- 
ciency record  of  diplomatic  officers  for  the  use  of  the  secre- 
tary and  asistant  secretary.^  Among  the  duties  of  the 
bureau  of  citizenship,  formerly  known  as  the  passport  bu- 
reau, the  most  important  are  the  examination  of  applica- 
tions for  passports,  the  preparation  and  issuance  of 
passports,  and  other  matters  relating  to  citizenship,  espe- 
cially of  persons  who  call  upon  the  United  States  Govern- 
ment for  protection  while  abroad.  The  bureau  of  accounts, 
in  addition  to  its  functions  relating  to  the  diplomatic,  con- 
sular, and  departmental  accounts,  also  keeps  a  record  of 
receipts  and  disbursements  on  account  of  indemnity  funds 
received  by  the  United  States  from  foreign  governments. 
The  functions  of  the  various  bureaus  are  subject  to  change 
from  time  to  time  at  the  order  of  the  secretary.  This  is  in 
accord  with  the  provision  of  an  act  of  Congress  passed  in 
1874,  as  follows:  **The  secretary  of  state  may  prescribe 
duties  for  the  assistant  secretaries,  the  solicitor,  not  inter- 

*  Outline  of  the  Organization  and  WorJc  of  the  Department  of  State,  54. 
'Ibid.,  63. 


46   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

fering  with  his  duties  as  an  officer  of  the  department  of 
justice,  and  the  clerks  of  bureaus,  as  well  as  for  all  the 
other  employees  in  the  department,  and  may  make  changes 
and  transfers  therein  when,  in  his  judgment,  it  becomes 
necessary.'* 


liEGAL    FUNCTIONS 

A  considerable  amount  of  the  work  carried  on  by  the 
state  department  is  of  a  legal  character  and  involves  a 
knowledge  both  of  international  and  of  municipal  law. 
' '  The  foreign  policy  of  the  United  States  must  be  in  accord- 
ance with  the  laws  of  the  United  States,  and  as  international 
law  is  an  integral  part  of  our  jurisprudence  (Paquette  Ha- 
hana,  1899, 175  U.  S.,  677),  it  follows  that  the  foreign  policy 
of  the  United  States,  in  so  far  as  it  involves  a  question  of 
law,  rather  than  courtesy  and  comity,  must  be  based  on  in- 
ternational law.''  ^  Many  of  the  secretaries  of  state  have 
themselves  been  able  lawyers.  The  amount  of  legal  work  in 
the  department,  however,  especially  in  connection  with  the 
examination  of  claims,  early  became  such  that  in  1848  a 
clerk  was  specially  assigned  to  this  work,  and  in  1866  the 
office  of  examiner  of  claims  was  created.  There  was  some 
feeling,  however,  that  the  presence  in  the  state  department 
of  a  law  officer,  advising  the  secretary  in  matters  affecting 
our  foreign  relations,  carried  with  it  the  possibility  of  a 
lack  of  harmony  between  such  advice  and  that  given  to  the 
President  and  his  cabinet  by  the  attorney-general.^  Conse- 
quently, in  the  act  of  Congress  which,  in  1870,  established 
the  department  of  justice,  the  attempt  was  made  to  prevent 
possible  conflict  in  legal  advice  relating  to  foreign  affairs 
by  transferring  the  examiner  of  claims  to  the  department 
of  justice,  although  his  duties  remained  a  part  of  the  func- 
tions of  the  state  department.    In  1887,  however,  Francis 

^Am.  Jour.  Intemat.  Lam,  III,  943  (Oct.,  1909). 
•Learned,  The  President's  Cabinet,  189. 


THE  DEPARTMENT  OF  STATE  47 

Wharton  declared  that  *  ^  the  law  bureau  of  the  department 
of  state  is  entirely  severed  in  practice  and  by  its  duties 
from  the  department  of  justice,  nor  has  its  head  at  any  time 
been  subject  to  the  directions  of  the  attorney-general."  In 
1891  the  title  of  the  examiner  of  claims  was  changed  to 
** solicitor  for  the  department  of  state,"  which  is  still  em- 
ployed. There  are  also  usually  several  assistant  solicitors 
and  a  number  of  law  clerks.  Among  the  legal  questions 
coming  before  the  solicitor  and  his  assistants  are  those 
pertaining  to  diplomatic  claims,  international  extradition, 
citizenship  and  expatriation,  extraterritoriality,  neutrality, 
belligerency,  contraband,  asylum,  international  arbitrations, 
and  the  distribution  of  awards  made  by  commissions.  These 
matters  involve  many  difficult  and  intricate  questions  in  the 
fields  of  constitutional  law,  admiralty  law,  and  criminal  law, 
as  well  as  all  branches  of  international  law.^ 


EECENT    REORGANIZATION 

Some  important  changes  and  additions  in  the  organiza- 
tion of  the  state  department  were  effected  in  1909.  Mr. 
Elihu  Eoot,  who  was  secretary  of  state  at  the  time,  is  quoted 
as  having  remarked  that  he  was  like  a  man  trying  to  conduct 
the  business  of  a  large  metropolitan  law-firm  in  the  office  of 
a  village  squire.^  The  work  of  the  department  had  grown 
until  its  personnel  and  organization  had  become  inadequate. 
Among  the  causes  of  this  development  were  the  increase  in 
our  foreign  trade  (particularly  our  export  trade  in  manu- 
factured products  as  differentiated  from  raw  materials), 
the  many  questions  growing  out  of  the  war  with  Spain,  the 
increasing  number  of  Americans  having  property  interests 
abroad,  the  swelling  immigration  to  the  United  States,  and 
the  enactment  of  the  tariff  law  of  1909,  placing  upon  the 
President  the  duty  of  administering  the  maximum  and  min- 

*  Outline  of  the  Organization  and  Work  of  the  Department  of  State,  29-30. 
*The  Nation,  Vol.  LXXXIX,  294  (September,  1909). 


48    THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

immn  tariff  rate  provision.^  All  of  these  matters  raised 
questions  which  had  to  be  given  attention  by  the  state  de- 
partment. In  order  better  to  fit  the  department  for  its 
enlarged  tasks,  a  reorganization  was  brought  about  in  1909 
through  the  creation  of  a  number  of  new  offices  and  divi- 
sions. The  most  important  additions  to  the  staff  were  the 
counselor,  the  director  of  the  consular  service,  and  the  resi- 
dent diplomatic  officer.  The  duties  of  the  counselor  '*  em- 
brace the  study  and  treatment  of  such  questions  as  may 
from  time  to  time  be  referred  to  him  involving  advanced 
legal  or  other  quesfions  and  requiring  uninterrupted  con- 
sideration and  investigation.  * '  ^  rpj^e  counselor  has  recently 
come  to  be  considered  the  most  important  officer  in  the 
department  next  to  the  secretary  himself,  and  has  some- 
times acted  as  secretary  during  the  latter's  absence.^ 

The  creation  of  the  office  of  resident  diplomatic  officer 
represented  an  attempt  to  bring  about  a  closer  connection 
between  the  State  Department  and  the  diplomatic  service. 
It  was  intended  that  this,  officer  should  be  a  man  with 
considerable  diplomatic  experience,  who  should  be  trans- 
ferred from  the  diplomatic  service  so  that  the  secretary  of 
state  may  at  all  times  have  at  hand  a  man  of  practical 
experience  in  the  foreign  field,  whom  he  may  consult  as  to 
important  matters  of  diplomatic  policy  and  to  whom  he 
may  assign  questions  for  study  in  the  light  of  actual  diplo- 
matic experience. 

The  reorganization  of  1909  also  brought  about  the  crea- 
tion of  five  divisions  in  the  department,  known  as  the 
divisions  of  Latin-American  Affairs,  Far-Eastern  Affairs, 
Near  Eastern  Affairs,  Western  European  Affairs,  and  In- 
formation. The  first  four  are  special  organs  created  to 
take  care  of  diplomatic,  consular,  and  miscellaneous  corre- 
spondence in  relation  to  the  principal  geographical  sections 

*  Outline  of  the  Organization  and  Work,  of  the  Department  of  State,  9-11. 
*Ihid.,  27. 

'  In  recent  appropriation  acts,  as  indicated  above,  the  title  of  counselor  has 
been  changed  to  "undersecretary  of  state.'' 


THE  DEPARTMENT  OF  STATE  49 

of  the  world  in  which  the  United  States  has  important 
interests.  This  specialization  of  functions  is  designed  to 
secure  and  to  train  experts  in  matters  of  interest  to  our 
Government  connected  with  the  particular  geographical  sec- 
tion. The  division  of  information  collects  and  distributes 
to  the  diplomatic  service  information  regarding  the  princi- 
pal negotiations  in  progress  between  the  United  States  and 
various  foreign  governments.  A  suggestion  that  this  prac- 
tice be  adopted  was  made  by  Dallas  as  early  as  1857.^ 
This  division  also  supervises  the  publication  of  the  series 
of  volumes  known  as  **  Foreign  Relations. '* 

In  other  departments  the  name  ** division"  is  usually 
given  to  a  unit  of  organization  subordinate  to  a  bureau. 
But  this  distinction  is  not  consistently  maintained  in  the 
department  of  state ;  nor  is  the  allotment  of  authority  be- 
tween divisions  and  bureaus  always  clearly  defined.  This 
may  result  in  overlapping  or  conflict.  Yet  it  tends  to 
prevent  that  inflexibility  of  organization  which  sometimes 
interferes  with  the  highest  efficiency.  In  the  state  depart- 
ment the  exact  delimitation  of  the  functions  exercised  by 
the  divisions  and  bureaus  is  subject  to  change  by  executive 
order  from  time  to  time.  In  general,  however,  the  bureaus 
attend  to  the  administrative  functions  assigned  to  them, 
while  the  duties  of  the  divisions  relate,  as  a  rule,  to  other 
than  administrative  or  routine  matters. 

As  already  pointed  out,  the  department  of  state,  the 
diplomatic  service,  and  the  consular  service  are  parts  of 
an  integral  system.  Nevertheless,  these  parts  have  fre- 
quently appeared  to  be  too  much  separated  and  disjointed 
to  permit  efficient  cooperation.  An  attempt  to  remedy  this 
condition  by  bringing  about  a  closer  connection  between 
the  state  department  and  the  higher  ranks  of  the  diplomatic 
service  was  made  through  the  creation,  as  already  noted, 
of  the  office  of  resident  diplomatic  officer  in  the  department. 
A  similar  attempt  to  bring  about  a  closer  connection  be- 

*  Moore,  Digest  of  Intemat.  Law,  IV,  788, 


50  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tween  the  department  and  the  lower  grades  of  the  diplo- 
matic and  consular  services  was  made  through  the  enact- 
ment by  Congress  in  1915  of  a  law  providing  that  all 
appointments  to  the  positions  of  secretary  and  consul  should 
be  to  grades  and  not  to  posts,  and  that  any  such  officer  might 
be  assigned  to  duty  in  the  department  of  state  without  loss 
of  grade  or  salary  for  a  period  of  not  more  than  three  or 
four  years.^ 

In  spite  of  the  considerable  improvement  which  has  re- 
cently been  brought  about  in  the  organization  of  the  state 
department,  it  still  remains  true  that  both  personnel  and 
appropriations  are  scarcely  adequate.  Although  the  secre- 
tary of  state  is  usually  considered  the  leading  man  in  the 
cabinet,  his  salary  of  $12,000  is  no  greater  than  that  re- 
ceived by  the  other  members  of  the  cabinet  and  is  quite 
insufficient,  in  view  of  his  living  expenses  and  the  social 
duties  incumbent  upon  him.  The  outbreak  of  the  European 
War  greatly  increased  the  work  and  responsibilities  of  the 
state  department  and  accentuated  the  inadequacy  of  its 
personnel  and  financial  support.  It  is  only  within  recent 
years  that  either  Congress  or  the  country  has  begun  to 
realize  the  great  importance  of  the  work  of  the  department 
and  the  need  that  it  should  be  adequately  supported. 


RELATIONS     WITH     CONGEESS 

The  relations  between  the  state  department  and  Congress 
are  not  as  close  as  they  would  be  under  a  parliamentary 
form  of  government.  But  they  might  be  closer  than  they 
are,  even  under  our  presidential  form.  The  secretary  of 
state  has  no  seat  in  Congress,  although  one  might  be  ac- 
corded to  him  or  to  some  other  representative  of  the  state 
department  without  violating  the  Constitution.  The  secre- 
tary makes  no  general  or  regular  report  to  Congress;  in- 

*  Act  of  February  5,  1915,  Chap.  23. 


THE  DEPARTMENT  OF  STATE  51 

rmation  regarding  diplomatic  relations  and  foreign  af- 
fairs is  usually  transmitted  to  the  two  houses  by  the  Pres- 
ident in  his  annual  message  or  address.^  On  the  other 
hand,  Congress  may  call  upon  the  secretary  for  correspon- 
dence or  other  information  relating  to  the  work  of  his  de- 
partment, and  this  information  is  usually  furnished  if  not 
incompatible  with  the  public  interests.  The  secretary,  fur- 
thermore, may  appear  upon  invitation  and  make  statements 
before  committees  of  Congress.  It  is  obviously  wise  for 
him  to  keep  in  close  touch  with  the  Senate  Committee  on 
Foreign  Eelations,  especially  in  connection  with  the  nego- 
tiation of  treaties.  Harmonious  relations  between  Con- 
gress and  the  state  department  will  usually  prevail  if  the 
party  of  the  administration  also  controls  Congress.  It  will 
greatly  help  if  the  secretary  of  state  has  previously  been  a 
member  of  the  national  legislature. 


REFERENCES 

"A  Diplomatist,"  American  Foreign  Policy  (Boston,  1909),  167-182. 

Conner,  J.  E.,  tlncle  Sam  Abroad  (Chicago,  1900),  Lect.  I. 

Fairlie,  J.  A.,  National  Administration  of  the  United  States  (New  York, 

1905),  77-81. 
Foster,  J.  W.,  A  Century  of  American  Diplomacy  (Boston,  1900),  Chap. 

IV. 
Gauss,  H.  C,  The  American  Government  (New  York,  1908),  132-135,  165- 

167,  240-246,  529. 
Harrison,  B.,  This  Country  of  Ours  (New  York,  1897),  Chap.  XI. 
Haskin,  F.  J.,  American  Government  (New  York,  1911),  14-26. 
Hill,  J.  P.,  The  Federal  Executive  (Boston,  1916),  79-84,  151. 
Hinsdale,  M.  L.,  History  of  the  President's  Cabinet  (Ann  Arbor,  1911), 

45,  307,  314-315. 
History  of  the  Department  of  State  of  the  United  States   (Washington, 

1901). 
Hunt,  G.,  The  Department  of  State  (New  Haven,  1914). 
,  "The  Department  of  State,''  Harper's  Magazine,  CXXXIII, 

519-526  (September,  1916). 
,  in  McLaughlin  and  Hart's  Cyclopedia  of  American  Govern- 
ment (New  York,  1914),  III,  378-381. 
Learned,  H.  B.,  The  President's  Cabinet  (New  Haven,  1911),  189. 

^Secretary  Olney,  however,  made  such  a  report  and  President  Cleveland 
transmitted  it  to  Congress  in  like  manner  with  reports  of  the  other  depart- 
ments.    Hinsdale,  History  of  tJie  President's  Cabmet,  307. 


52   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  IV,  780- 
794. 

Osborne,  J.  B.,  "Trade  Protection  Work  of  the  Department  of  State,"  Pan- 
American  Union,  Bulletin,  XXXIII,  1134-1136  (December,  1911). 

Outline  of  the  Organization  and  Work  of  the  Department  of  State  (Wash- 
ington, 1911). 

"Reorganization  of  the  Department  of  State,"  The  Nation,  LXXXIX,  294- 
295   (September  30,  1909). 

"Rules  and  Regulations  Governing  the  Department  of  State,"  Senate  doc. 
No.  359,  59th  Cong.,  2nd  sess.  (1907). 

Schuyler,  E.,  American  Diplomacy  and  the  Furtherance  of  Commerce 
(New  York,  1886),  Chap.  I. 

Sweetser,  A.,  "Why  the  State  Department  Should  be  Reorganized," 
.World's  Work,  XXXIX,  511-515   (March,  1920). 

The  Department  of  State  of  the  United  States,  How  It  Was  Formed, 
What  Are  Its  Duties,  and  How  It  Is  Run  (Washington,  1898). 

Van  Dyne,  F.,  Our  Foreign  Service  (Rochester,  1909),  Chap.  I. 


CHAPTER  IV 

DIPLOMATIC  INTERCOURSE:   PERSONNEL 

UNDER  the  Articles  of  Confederation  the  power  of 
sending  and  receiving  ambassadors  was  vested  in 
Congress,  and  the  states  were  prohibited  from  engaging  in 
diplomatic  intercourse  without  the  consent  of  that  body. 
Strictly  construed,  the  language  of  the  Articles  would  have 
enabled  Congress  to  appoint  only  the  highest  grade  of  pub- 
lic minister.  In  practice  such  a  construction  was  not  ad- 
hered to.^  But  this  defect  was  remedied  in  the  present  con- 
stitution by  including  ** other  public  ministers  and  consuls'' 
among  the  officers  who  may  be  sent  abroad  by  our  Govern- 
ment. In  regard  to  the  method  of  appointment  the  Consti- 
tutional Convention  of  1787  considered  for  some  time  a  pro- 
posal to  vest  in  the  Senate  the  power  to  appoint  ambassa- 
dors and  other  public  ministers.  Gouverneur  Morris,  how- 
ever, argued  against  such  a  mode  of  appointment. .  He  con- 
sidered the  Senate  as  '*too  numerous  for  the  purpose;  as 
subject  to  cabal ;  and  as  devoid  of  responsibility. ' '  ^  In  the 
final  draft,  the  power  of  appointing  ambassadors  and  other 
public  ministers  and  consuls  was  conferred  upon  the  Pres- 
ident, **by  and  with  the  advice  and  consent  of  the  Senate,'' 
while  the  power  of  receiving  ambassadors  and  other  public 
ministers  was  vested  in  the  President  alone. 

CREATION    OF    DIPLOMATIC    OFFICES 

Diplomatic  offices  are  created  by  the  Constitution,  by» 
international  law,  or  by  act  of  Congress  and  cannot  be 
created  by  the  President,  as  this  is  properly  a  legislative 

*  Madison,  in  Federalist,  No.  42. 
*Farrand,  Becords  of  the  Federal  Convention,  II,  389. 

53 


54   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

power.^  The  power  of  Congress  to  create  offices  arises 
from  the  clause  of  the  Constitution  enabling  that  body  to 
pass  all  laws  which  may  be  necessary  and  proper  for  carry- 
ing into  execution  the  powers  of  any  officer  or  department 
of  the  Government.  With  reference  to  the  President's 
power  of  appointing  officers  whose  appointments  were  not 
otherwise  provided  for  in  the  Constitution,  Madison  moved 
in  the  Convention,  on  August  24, 1787,  to  amend  by  striking 
out  *^ officers''  and  inserting  **to  offices,"  in  order  to  ** obvi- 
ate doubts  that  he  might  appoint  officers  without  a  previous 
creation  of  the  offices  by  the  Legislature;"  and  the  motion 
was  carried.^  On  September  8  Gerry  moved  that  *^no 
officer  be  appointed  but  to  offices  created  by  the  Constitution 
or  by  law."  But  by  a  close  vote  this  was  rejected  as  being 
unnecessary.^  It  has  been  stated  that  the  question  whether 
the  President  may,  on  his  own  initiative,  appoint  an  ambas- 
sador, public  minister,  or  consul  when  Congress  has  not 
created  those  offices,  is  one  which  cannot  be  regarded  as 
settled.*  It  would  seem,  however,  that  the  provision  of  the 
Constitution  vesting  in  the  President  and  Senate  the  ap- 
pointment of  these  officers  is  sufficient  authority  to  enable 
them  to  act,  even  though  Congress  has  not  passed  a  law 
specifically  creating  such  offices.  This,  at  any  rate,  appears 
to  have  been  the  construction  placed  upon  that  provision 
in  practice  during  the  early  years  of  the  Constitution. 

Despite  the  apparently  inconsistent  position  which  he  had 
taken  in  the  Convention,  Madison  was  of  the  opinion  in  1822 
that  **the  practice  of  the  government  had,  from  the  begin- 
ning, been  regulated  by  the  idea  that  the  places  or  offices 
of  public  ministers  and  consuls  existed  under  the  law  and 
usages  of  nations,  and  were  always  open  to  receive  appoint- 
ments as  they  might  be  made  by  competent  authorities."  ^ 

*Willoughby,  Constitutional  Law  of  the  United  States,  II,  1178. 
'Journal  (Hunt  ed.),  H,  246. 

*  Ibid.,  II,  335. 

*  Tucker  on  the  Constitution,  II,  736. 

»3  Madison 's  Works,  267,  quoted  in  Moore,  Digest  of  Internat.  Law,  IV,  451. 


DIPLOMATIC  INTERCOURSE  :  PERSONNEL  55 

Attorney-General  Gushing  took  practically  the  same  posi- 
tion in  1855,  declaring  it  to  be  the  *  *  undeniable  fact  that  j  ^ 
*  public  ministers*  as  a  class  are  created  by  the  Constitution 
and  law  of  nations,  not  by  act  of  Congress.  No  act  of ' 
Congress  created  the  offices  of  minister  to  [the  various 
countries],  to  which  ministers  were  sent  by  President  Wash- 
ington. '  *  ^ 

APPOINTMENT     OF    DIPLOMATIC     REPRESENTATIVES 

In  1789^Congress  passed  an  act  creating  the  department' 
of  foreign  affairs  and  providing  that  the  secretary  of  the 
department  should  perform  such  duties  respecting  foreign 
affairs  as  the  President  might  enjoin  on  or  entrust  to  him.^ 
No  act  of  Congress  was  passed,  however,  providing  for  the 
maintenance  of  diplomatic  representatives  abroad  until 
July J^1790,  when  the  President  was  authorized  by  law  ^  ^  to 
draw  from  tFe  Treasury  a  sum  not  exceeding  forty  thou- 
sand dollars  annually,  for  the  support  of  such  persons  as 
he  shall  commission  to  serve  the  United  States  in  foreign 
parts,  and  for  the  expense  incident  to  the  business  in  which 
they  are  employed. ' '  ^  Prior  to  the  passage  of  this  act, 
however,  President  Washington  had  commissioned  William 
Short  as  charge  d'affaires  in  France  and  William  Car- 
michael  in  Spain.  **In  each  of  these  cases,  the  designation 
of  the  officer  was  derived  from  the  law  of  nations,  and  the 
authority  to  appoint  from  the  Constitution. ' '  '*  The  power 
to  appoint  diplomatic  agents,  declared  Attorney-General 
Cushing  in  1855,  ^  4s  a  constitutional  function  of  the  Presi- 
dent, not  derived  from,  not  limitable  by,  Congress,  but  re- 
quiring only  the  ultimate  concurrence  of  the  Senate ;  and  so 


*  7  Op.  U.  S.  Att-Gen.,  212. 

'1  Stat,  at  L.,  28.    Shortly  afterwards  the  name  was  changed  to  Depart- 
ment of  State. 
'I6td.,  128. 

*  7  Op.  U.  S.  Att.-Gen.,  194. 


56    THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

it  was  understood  in  the  early  practice  of  the  Govern- 
ment. ' '  ^ 

The  Constitution  does  not  undertake  to  enumerate  the 
various  grades  of  diplomatic  officers.  The  term  **  public 
ministers/'  however,  as  used  in  the  Constitution,  is  suffi- 
ciently comprehensive  to  embrace  all  grades  and  ranks  of 
diplomatic  agents.  Our  Government  adopted,  in  part,  the 
system  of  diplomatic  grades  and  ranks  which  it  found  in 
vogue  among  other  civilized  nations,  and  the  State  Depart- 
ment has  reiterated  the  rules  in  reference  to  this  matter 
which  were  drawn  up  at  the  Congresses  of  Vienna  and  of 
Aix-la-Chapelle  in  1815  and  1818  respectively.^  From  1790 
to  1818,  Congress  continued  to  vote  lump  sum  appropria- 
tions for  diplomatic  intercourse  in  general  acts.  That  body 
made  no  attempt  during  these  years  to  create  diplomatic 
offices  or  to  determine  ranks  or  grades,  although  in  some  of 
the  appropriation  acts  certain  grades  of  diplomatic  agents, 
e.g.y  ministers  plenipotentiary  and  charges  d'affaires  were 
mentioned.  The  practice  during  this  time  **  recognized  the 
right  and  power  of  the  President  to  designate,  and  with  the 
consent  of  the  Senate,  appoint,  public  ministers  of  any 
rank  or  denomination  which  the  public  interest  might  re- 
quire. .  .  .  Indeed,  many  of  the  early  appointments  are  of 
a  title  of  designation  deliberately  different  from  those  ex- 
pressly named  in  the  acts  of  Congress.''^  Beginning  in 
1818,  the  names  of  the  existing  or  anticipated  diplomatic 
missions  are  introduced  into  the  appropriation  acts,  and 
certain  sums  of  money  are  allotted  to  each;  but,  in  addition, 
a  contingent  fund  is  placed  at  the  disposal  of  the  President.^ 

In  1826  opposition  developed  in  Congress  to  the  proposal 
of  President  Adams  to  send  envoys  extraordinary  and  mini- 
sters plenipotentiary  to  the  Congress  of  Panama,  on  the 
ground  that  no  such  officers  were  known  to  the  Constitution 

^  7  Op.  U.  S.  Att.-Gen.,  193. 

^Instructions  to  Diplomatic   Officers  of  the   United  States,  sects.    18-20; 
Moore,  Digesrt  of  Intemat.  Law,  IV.  430. 
'  7  Op.  U.  S.  Att.-Geii.,  195-6. 
*3  Stat.  atL.,  422. 


DIPLOMATIC  INTERCOURSE :  PERSONNEL  57 

or  to  the  law  of  nations.  Martin  Van  Buren  proposed  a 
resolution  in  the  Senate  declaring  that  the  Constitution 
authorizes  nomination  and  appointment  to  offices  of  a  diplo- 
matic character  only,  existing  by  virtue  of  international 
laws,  and  does  not  authorize  the  appointment  of  representa- 
tives to  an  assembly  of  nations.^  The  Senate  nevertheless 
confirmed  the  appointments,  although  no  such  offices  had 
been  created  by  act  of  Congress;  and  Congress  subse- 
quently sanctioned  the  proceedings  by  appropriating  the 
necessary  funds  for  the  mission. 

Although  under  the  power  vested  in  him  by  the  Constitu- 
tion the  President  doubtless  might,  from  the  beginning, 
have  appointed  diplomatic  representatives  of  the  grade  of 
ambassador,  none  such  were  appointed  prior  to  1893.  In 
that  year  Congress  passed  an  act  providing  that  ^  ^whenever 
the  President  is  advised  that  any  foreign  government  is  or 
is  about  to  be  represented  in  the  United  States  by  an  ambas- 
sador,'' etc.,  **he  is  authorized,  in  his  discretion,  to  direct 
that  the  representative  of  the  United  States  to  such  govern- 
ment shall  bear  the  same  designation. ' '  ^  jn  1909  Congress 
went  farther  and  provided  that  ^^  hereafter  no  new  ambas- 
sadorship shall  be  created  unless  the  same  shall  be  provided 
for  by  act  of  Congress.''^  Since  the  passage  of  this  act. 
Congress  has  at  various  times  assumed  to  authorize  the 
President  to  appoint  ambassadors  to  various  countries, 
such  as  Spain,  Chile,  and  Argentina.* 

These  acts,  however,  are  not  to  be  construed  as  valid 
limitations  upon  the  power  of  the  President  to  appoint 
diplomatic  representatives.  In  1855  Congress  passed  an 
act  which  purported  to  require  that  the  President  should 
appoint  to  certain  countries  representatives  of  certain 
grades.  Attorney-Greneral  Cushing,  however,  properly  held 
that  this  provision  must  be  regarded,  not  as  mandatory,  but 

» Senate  Exec.  Jour.,  Ill,  516  (March  14,  1826). 
*27  Stat,  at  L.,  497  (March  1,  1893). 
•35  Stat.  atL.,  672. 
•38  Stat,  at  L.,  110,  378. 


58   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

as  merely  directory  or  recommendatory.^     The  same  char- 
acterization may  be  made  of  the  acts  of  1893  and  of  1909, 
mentioned  above.     The  discretion  of  the  President  as  to 
whether  it  is  expedient  to  maintain  a  representative  of  a 
certain  grade  at  a  certain  post  cannot  be  legally  controlled 
by  Congress,  nor  can  he  be  required  to  maintain  any  repre-  • 
sentative  whatever  at  a  given  foreign  capital  if  he  thinks 
it  expedient  to  leave  the  post  vacant.     Suppose  the  Senate 
rejects  the  nomination  of  a  person  whom  the  President 
thinks  suitable  to  be  appointed  to  a  diplomatic  position. 
Can  Congress  compel  him  to  nominate  a  person  who  is 
satisfactory  to  the   Senate  rather  than  leave  the  place 
vacant?     Or,  suppose  that  the  President  considers  the  at- 
titude of  a  foreign  government  toward  the  United  States 
so  unfriendly  as  to  justify  us  in  leaving  vacant  the  position 
of  our  diplomatic  representative  accredited  to  it,  or  in  main- 
taining at  that  post  a  representative  of  an  inferior  grade 
in  order  to  show  our  displeasure.     Can  Congress  neverthe- 
less compel  the  President  to  keep  the  place  filled  by  the 
appointment  of  a  representative  of  a  higher  grade?     These 
questions  are  manifestly  to  be  answered  in  the  negative. 
The  President  is,  however,  dependent  upon  Congress  for 
securing  the  necessary  appropriation  to  pay  to  a  diplomatic 
representative  a  salary  commensurate  with  his  grade,  and 
this  enables  Congress  to  exercise  a  practical  control  over 
the  matter,  qualified  to  some  extent,  however,  by  the  prac- 
tice of  maintaining  a  contingent  fund  at  the  President's 
disposal.^ 

The  process  of  appointment,  to  office  consists  of  three 
steps:  (1)  nomination,  (2)  confirmation,  i.e.,  the  granting 
of  the  *^ advice  and  consent'^  of  the  Senate  to  the  appoint- 

»  7  Op.  Att.-Gen.,  189-229. 

*  There  seems  to  have  been  at  times  some  opposition  in  Congress  to  provid- 
ing the  President  with  a  contingent  fund  for  foreign  intercourse.  Maclay 
records  in  his  journal  that  in  1790  Jefferson,  then  secretary  of  state,  appeared 
"before  a  Senate  committee,  and,  as  a  result  of  his  illuminating  exposition 
of  diplomatic  methods  in  Europe,  the  committee  agreed  to  strike  out  the 
specific  sum  to  be  given  to  any  foreign  appointment,  leaving  a  lump  sum  to 
the  President  for  foreign  intercourse.    Journal,  p.  272. 


DIPLOMATIC  INTERCOURSE  :  PERSONNEL  59 

ment,  and  (3)  signing  the  commission.  Chief  Justice  Mar- 
shall held,  in  Marbury  v.  Madison,  that  the  appointment 
was  complete  when  the  commission  was  signed  and  that  the 
delivery  of  the  commission  could,  in  proper  cases,  be  com- 
pelled by  mandamus.^  Of  the  three  steps  in  the  process, 
the  President  controls  the  first  and  third,  while  the  second 
only  devolves  upon  the  Senate.  In  taking  the  first  and 
third  steps,  the  action  of  the  President  is  voluntary.  He 
cannot  be  legally  compelled  to  sign  a  commission,  even 
though  the  Senate  has  given  its  advice  and  consent  to  the 
appointment.^  Some  question  was  raised  during  the  early 
years  under  the  Constitution  as  to  whether  the  Senate  has 
the  right  to  participate  in  the  first  step  by  suggesting  names 
to  the  President.  This  view,  however,  did  not  prevail,  since 
the  language  of  the  Constitution  which  associates  the  Pres- 
ident and  Senate  in  the  appointing  power  clearly  implies 
that  the  President  has  the  sole  right  of  nomination,  and  that 
the  advice  and  consent  of  the  Senate  operate  only  upon  the 
confiitoation  of  the  appointment.  The  President  may,  how- 
ever, voluntarily  consult  with  influential  members  of  the 
Senate  in  regard  to  nominations,  and  the  requirement  of 
Senatorial  confirmation  in  order  to  validate  an  appointment 
may  exert  an  indirect  or  retroactive  influence  over  the 
President's  action.^ 

The  question  may  be  raised  whether  the  action  of  the 
Senate  in  rejecting  a  nomination  made  by  the  President  is 
to  be  regarded  as  a  final  and  conclusive  determination  of  the 
matter.  In  other  words,  may  the  President  renominate  the 
same  person  for  the  same  place?  In  1834  President  Jack- 
son nominated  Ajidrew  Stevenson  to  be  minister  to  Great 
Britain,  but  the  Senate  refused  to  approve.     The  President 

*  1  Cr.  156. 

'In  Marbury  v.  Madison,  however,  Chief  Justice  Marshall  remarked:  **To 
grant  a  commission  to  a  person  appointed  might,  perhaps,  be  deemed  a  duty 
enjoined  by  the  Constitution." 

*  A  majority  vote  in  the  Senate  is  suflB.cient  to  confirm  appointments,  so  that 
action  on  nominations  to  office  is,  as  a  rule,  more  easily  secured  than  on 
treaties,  when  a  two-thirds  vote  of  the  senators  present  is  required. 


60  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

then  allowed  the  post  to  remain  vacant  for  almost  two  years. 
Finally,  in  1836,  he  again  sent  in  the  nomination  of  Steven- 
son for  the  place.  With  reference  to  this  renomination, 
Henry  Clay,  from  the  Committee  on  Foreign  Relations, 
made  a  report  recommending  the  rejection  of  Stevenson's 
renomination  and  stating  it  to  be  the  opinion  of  the  Com- 
mittee that  the  practice  of  renomination  was  subject  to 
serious  abuses  and  that  when  the  Senate  has  once  rejected 
an  individual  nomination  the  decision  ought  to  be  held  as 
final  and  conclusive. 

**The  Senate,''  continued  the  report,  **is  supposed  to  be, 
by  the  theory  of  the  Constitution,  as  free  and  independent 
in  the  exercise  of  its  judgment  on  nominations  submitted 
to  its  consideration  as  the  President  is  in  proposing  them. 
Each  of  the  two  components  of  the  appointing  power  acts 
upon  its  own  sense  of  duty  and  upon  its  own  responsibility. 
The  Senate  has  no  right  to  require  the  President  to  nomi- 
nate any  particular  individual,  and  the  President  has  no 
right  to  require  the  Senate  to  confirm  any  particular  nomi- 
nation. When  the  Senate  has  once  decided  upon  a  nomina- 
tion, there  ought  to  be  an  end  to  the  matter."  ^ 

The  Senate  could,  of  course,  reject  a  renomination  pre- 
cisely as  any  other  nomination ;  or  it  might  fail  to  act  upon 
it  at  all,  which  would  have  the  same  result.  A  settled  prac- 
tice on  the  part  of  the  Senate  to  reject  renominations  would 
doubtless  have  the  practical  effect  of  deterring  the  Presi- 
dent from  making  them.  But  the  discretion  of  the  President 
in  making  a  renomination  as  often  as  he  pleases  cannot  be 
legally  controlled,  save,  of  course,  by  an  amendment  to  the 
Constitution. 

QUALIFICATIONS    OF    DIPLOMATIC    OFFICERS 

Congress  has  sometimes  attempted  to  lay  down  legal 
qualifications  for  diplomatic  and  consular  officers.    Thus  an 

*  Senate  doc.  231,  56th  Cong.,  2nd  sess.,  part  4,  p.  33;  Senate  Exec.  Jour., 
IV,  516  (March  3,  1836).  On  motion  of  Clay,  the  Senat©  ordered  that  the 
nomination  of  Stevenson  be  tabled  {Ibid.,  516) .  , 


DIPLOMATIC  INTERCOURSE :  PERSONNEL  61 

act  of  1855  provided  **that  the  President  shall  appoint  no 
other  than  citizens  of  the  United  States  ...  as  envoys  ex- 
traordinary and  ministers  plenipotentiary,  .  .  .  consuls  or 
commercial  agents.'^  ^  Similar  provisions  requiring  that 
none  but  American  citizens  shall  be  appointed  to  designated 
diplomatic  and  consular  offices  have  been  incorporated  in 
subsequent  acts  of  Congress.  The  requirement  of  such  a 
qualification  constitutes  an  attempted  limitation  upon  the 
free  exercise  of  the  appointing  power,  and  the  question  may 
be  raised  whether  the  discretion  of  the  President  and  Senate 
may,  consistently  with  the  Constitution,  be  thus  circum- 
scribed. Attorney-General  Cushing  held  that  such  a  provi- 
sion in  an  act  of  Congress  is  recommendatory  only,  and  not 
mandatory.  **The  limit  of  the  range  of  selection,''  he  said, 
*'for  the  appointment  of  constitutional  officers  depends  on 
the  Constitution.  .  .  .  The  President  has  absolute  right  to 
select  for  appointment.''  ^ 

The  same  question  has  come  up  in  connection  with  the 
application  of  the  merit  system  to  appointments  in  the  civil 
service.  Certainly  Congress  could  not  legally  limit  the 
power  of  the  President  and  Senate  to  the  appointment  of 
such  persons  only  as  receive  the  highest  grade  in  a  competi- 
tive examination  and  are  so  certified  by  a  civil  service  com- 
mission, since  this  would  amount  to  a  transfer  of  the  power 
of  appointment  to  the  commission.  The  right  of  Congress 
to  create  offices  may  be  construed  to  imply  the  right  of  pre- 
scribing'qualifications  for  them,  but  this  right  ''is  limited 
by  the  necessity  of  leaving  scope  for  the  judgment  and  will 
of  the  person  or  body  in  whom  the  Constitution  vests  the 
power  of  appointment. ' '  ^,  The  President  may,  however,  by 
executive  regulations,  voluntarily  limit  his  nominations  to 
such  persons  as  may  pass  an  examination  after  being  des- 
ignated by  him  to  take  it.  It  has  also  been  held  that  the 
President  may,  under  authority  derived  from  Congress, 

*  Act  ^of  March  1,  1855,  sect.  9. 
»7  Op.  Atty.-Gen-  215,  267. 

•  13  ibid.,  520. 


62   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

issue  such  regulations  even  with  reference  to  positions  in 
the  civil  service  which  by  law  are  to  be  filled  by  appointees 
of  a  head  of  an  executive  department.^  By  executive  orders 
of  1906  and  1909,  such  regulations  have  been  issued  by  the 
President  with  reference  to  certain  grades  of  diplomatic 
secretaries  and  consuls.^  These  orders  also  provided  that 
none  but  citizens  of  the  United  States  shall  be  eligible  to 
take  the  examinations. 

Attorney-General  Akerman,  in  1871,  gave  a  more  liberal 
construction  of  the  power  of  Congress  in  prescribing  quali- 
fications for  office  than  had  been  allowed  by  Attorney-Gen- 
eral Gushing.  It  was  held  by  the  former  that  Congress  could 
require  that  officers  shall  be  of  American  citizenship  or  of 
a  certain  age,  and  still  leave  a  reasonable  scope  for  the  exer- 
cise by  the  appointing  power  of  its  own  judgment  and  will.^ 
If  any  limitation  upon  such  scope  not  found  in  the  Constitu- 
tion itself  is  allowed,  however,  it  is  difficult  to  see  where 
the  line  should  be  drawn.  The  better  view  would  seem  to 
be  that  of  Attorney-General  Cushing  that  qualifications, 
such  as  age  and  citizenship,  required  by  acts  of  Congress 
are  only  recommendatory.  They  should,  of  course,  be 
treated  by  the  President  with  the  respect  due  to  the  opinions 
of  a  coordinate  branch  of  the  Government,  but  not  as  com- 
pulsory if,  in  his  judgment,  it  is  inexpedient  to  observe 
them.  Congress,  however,  could  limit  the  payment  of  com- 
pensation for  their  services  to  such  appointees  as  possess 
the  qualifications  prescribed  by  law.  It  has,  in  fact,  adopted 
this  course  and  has  stipulated  that  no  compensation 
provided  for  diplomatic  officers  shall  be  applicable  to  per- 
sons holding  such  offices  who  are  not  citizens  of  the  United 
States.^  It  is  doubtful  whether  the  President  could  legally 
provide  compensation  for  such  persons  from  his  contingent- 
fund,  for,  under  the  general  rules  of  statutory  construction, 

» 13  Op.  Atty.-Gen.,  524. 

•  Executive  Ordexs  of  June  27,  1906,  and  November  26,  1909. 

•  13  "Op.  Atty.-Gen.,  525.  -^ 

*11  Stat,  at  L.,  60;  B.  S.,  sect.  1744;  cf.  R.  S.,  sect.  1760. 


DIPLOMATIC  INTERCOURSE:  PERSONNEL  63 

an  express  provision  that  no  compensation  should  be  paid 
to  an  officer  not  having  the  qualifications  prescribed  by 
Congress  would  be  construed  as  an  exception  to  a  general 
grant  to  the  President  of  a  lump  sum  to  be  used  as  a  contin- 
gent fund.^  / 

Another  question  which  may  be  considered  in  this  conneo-  ' 
tion  relates  to  the  power  of  the  President  to  appoint  a 
member  of  the  Senate  or  of  the  House  of  Representatives 
to  a  diplomatic  position.  With  a  view  to  keeping  the  legisla- 
tive and  executive  departments  of  the  Government  separate, 
as  well  as  avoiding  such  abuses  as  were  thought  to  have 
grown  up  in  England  through  appointment  of  members  of 
Parliament  to  office,  the  framers  of  our  Constitution  prohib- 
ited a  Senator  or  Representative  from  holding  any  office 
under  the  United  States,  or  from  accepting  such  an  office, 
if  civil  in  character,  during  the  time  for  which  he  was 
elected,  if  the  office  were  created  or  its  emoluments  in- 
creased during  such  time.^  In  spite  of  this  provision,  how- 
ever, members  of  Congress  have  sometimes  been  nominated 
to  diplomatic  positions,  although  not  without  some  opposi- 
tion among  their  colleagues. 

The  question  here  involved  has  come  up  in  two  forms: 
(1)  with  reference  to  the  appointment  of  members  of  Con- 
gress to  regular  or,  comparatively  speaking,  permanent 
diplomatic  positions,  and  (2)  with  reference  to  their  ap-  ' 
pointment  on  special  or  temporary  missions  to  accomplish 
particular  objects,  such  as  the  negotiation  of  a  treaty  of 
peace.  An  incident  illustrative  of  the  attitude  of  members  of 
the  Senate  toward  appointments  of  the  first  class  occurred 
in  connection  with  the  nomination  by  President  Jackson 
in  1834  of  Andrew  Stevenson  to  be  our  minister  to  Great 
'  Britain.    Mr.  Stevenson  was,  at  the  time  of  his  nomination, 

*  Evasion  by  the  President,  however,  of  Congressional  stipulations  in  this 
respect/  through  payments  to  persons  without  tke  prescribed  qualifications  from 
the  secret  fund  on  presidential  certificates,  could  probably  be  disclosed  only  in 
impeachment  proceedings. 

*Art.  I,  sect.  6,  cl.  2. 


64   THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Speaker  of  the  House  of  Eepresentatives.  His  nomination 
was  rejected  by  the  Senate,  and,  in  a  report  subsequently 
made  by  Henry  Clay  from  the  Committee  on  Foreign  Eela- 
tions,  opposition  to  his  appointment  was  based,  in  part, 
upon  his  membership  in  Congress. 

**It  is  a  fundamental  principle  of  free  governments,'' 
declared  the  report,  **that,  in  order  to  preserve  the  purity 
of  their  administration,  each  of  the  three  departments  into 
which,  according  to  all  safe  maxims,  they  are  divided,  should 
be  kept  independent  of,  and  without  the  influence  of  the 
other.  But,  if  the  head  of  one  of  these  departments  may, 
at  a  critical  period,  confidently  present,  and  for  a  long 
period  of  time  hold  up  to  the  presiding  officer  of  the  popular 
branch  of  the  other,  the  powerful  inducement  of  a  splendid 
foreign  mission,  is  there  not  imminent  danger  of  undue  sub- 
serviency— of  a  failure  of  that  presiding  officer  faithfully 
and  independently  to  discharge  the  high  duties  of  his  ex- 
alted station?"^ 

Although  there  might  be  some  danger  of  the  abuse  to 
which  this  report  refers,  there  is  no  constitutional  objection 
to  a  member  of  Congress,  after  resigning  his  legislative 
position,  accepting  appointment  to  a  regular  diplomatic 
office  which  has  not  been  created  and  whose  emoluments 
have  not  been  increased  during  the  time  for  which  he  was 
elected. 

In  the  second  place,  the  question  has  been  raised  as 
to  the  legality,  or  at  least  the  propriety,  of  a  member  of 
Congress,  without  resigning  from  that  body,  accepting  ap- 
pointment on  a  special  diplomatic  mission,  such  as  one 
deputed  to  negotiate  a  treaty  of  peace.  On  the  commission 
to  negotiate  the  Treaty  of  Ghent  in  1814,  President  Madison 
appointed,  with  the  advice  and  consent  of  the  Senate,  James 
A.  Bayard,  a  member  of  the  Senate,  and  Henry  Clay,  at 
that  time  Speaker  of  the  House.  Both  men,  however,  evi- 
dently considered  their  new  duties  incompatible  with  mem- 

*  Senate  doc.  231,  56th  Cong.,  2nd  sess.,  part  4,  p.  32;  Senate  Exec.  Jour., 
IV,  515  (March  3,  1836). 


DIPLOMATIC  INTERCOURSE :  PERSONNEL  65 

bership  in  Congress,  because  they  resigned  from  that  body. 
On  the  commission  to  negotiate  the  treaty  of  peace  with 
Spain  in  1898  President  McKinley  appointed  three  members 
of  the  Senate,  one  being  president  pro  tern,  of  that  body 
and  another  being  chairman  of  the  committee  on  foreign 
relations.  Their  names  were  not  submitted  to  the  Senate 
for  confirmation,  nor  did  they  resign  from  that  body.  The 
President  appointed  them,  however,  during  a  recess  of  the 
Senate,  and  the  negotiations  were  practically  completed 
during  this  interim. 

The  President's  appointment  of  members  of  the  Senate 
to  conduct  negotiations  led  to  the  introduction  in  the  upper 
house  of  a  resolution  and  a  bill  expressing  disapproval  of 
the  practice.  In  order  not  to  cast  reflection  upon  the  partic- 
ular senators  appointed  by  the  President,  the  resolution 
and  bill  were  not  reported  by  the  committee  on  the  judiciary, 
to  which  they  were  referred.  But  Senator  Hoar,  chairman 
of  the  committee,  was  instructed  to  confer  with  the  Presi- 
dent and  to  protest  against  the  practice.  At  the  interview 
the  President  gave  a  qualified  assurance  that  the  practice 
would  be  discontinued.^  In  1898  the  Senate  declined  to 
confirm  the  appointment  of  three  of  its  members  as  mem- 
bers of  the  Hawaiian  Commission.  Nevertheless,  the  three 
served  on  the  commission  as  mere  Presidential  appointees.^ 
The  question  arose  again  in  1903  upon  a  proposed  amend- 
ment to  the  Sundry  Civil  Appropriation  Bill  providing  that 
senators  and  representatives  should  be  ineligible  for  service 
on  foreign  missions.  The  amendment  failed  to  pass,  but 
the  debate  upon  it  in  the  Senate  indicated  that  the  opinion 
of  that  body  was  strongly  opposed  to  the  service  of  senators 
on  such  missions,  especially  when  they  were  appointed  to 
negotiate  treaties  which  must  later  come  before  the  Senate 
for  action,  since  it  might  give  the  President  an  undue 
influence  over  the  Senate. 

»  Cong.  Record,  February  26,  1903,  vol.  36,  p.  2698. 

*Ibid.,  2695.  The  members  of  the  Senate  who  served  on  this  commission 
received  no  compensation  beyond  their  salaries  as  senators. 


66  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

The  argument  of  unconstitutionality  was  also  brought 
forward  in  this  debate  against  the  practice  in  question. 
Senator  Bacon  declared  that  it  was  **  distinctly  in  opposi- 
tion to  the  express  policy,  if  not  the  express  command,  of 
the  Constitution. '  *  At  the  same  time,  however,  he  indicated 
the  basis  upon  which  the  practice  may  be  defended  against 
this  charge :  *^The  only  possible  escape  from  the  [constitu- 
tional] prohibition  is  to  say  that  a  position  on  one  of  those 
commissions  is  not  an  office."  ^  The  persons  designated  by 
the  President  to  serve  on  special  missions  to  negotiate 
treaties  need  not  be  considered  officers  of  the  United  States. 
The  power  of  the  President  to  appoint  commissioners  to 
negotiate  treaties  rests,  not  upon  his  power  to  appoint  of- 
ficers, but  upon  his  power  to  negotiate  treaties.  The  Pres- 
ident merely  employs  agents  to  perform  certain  specific 
duties  under  his  direction.  Such  persons  receive  no  fixed 
compensation  authorized  by  law,  but  are  paid,  if  at  all,  out 
of  the  contingent  fund  placed  at  the  disposal  of  the  Presi- 
dent. Although  the  President  may  voluntarily  send  their 
nominations  to  the  Senate,  this  is  not  done  as  a  rule,  and 
the  constitutional  requirement  as  to  the  confirmation  by  the 
Senate  of  Presidential  appointments  is  not  applicable. 

PEESIDENTIAL     APPOINTMENT     WITHOUT 
SENATORIAL    CONFIRMATION 

Under  the  Constitution,  Congress  is  empowered  to  vest 
:he  appointment  of  *4i^rior"  officers  in  the  President 
alone  or  in  the  heads  of  departments.  In  pursuance  of  this 
power  Congress  has  vested  the  appointment  of  certain  per- 
sons in  the  lower  grades  of  the  consular  service,  such  as 
vice-consuls,  consular  clerks,  and  student  interpreters,  in 
the  President  alone  or  in  the  Secretary  of  State.^  The 
power  to  appoint  these  inferior  officers,  however,  is  of 
minor  significance.  A  more  important  power  is  that  which 

»Cong.  Eecord,  February  26,  1903,  vol.  36,  a  2696. 
^E^vised  Statutes,  sect.  1704;  24  Op.  U.  S.  Atty.-Gen.,  52. 


DIPLOMATIC  INTERCOURSE  :  PERSONNEL  67 

the  President  has  developed  of  appointing  special  diplo- 
matic agents  without  the  confirmation  of  the  Senate.  Such 
Presidential  agents  may,  in  general,  be  divided  into  (1) 
those  designated  to  negotiate  a  treaty  and  (2)  those  des- 
ignated for  other  purposes  connected  with  the  general  con- 
duct of  our  foreign  relations.^ 

During  the  first  quarter-century  of  our  history  under  the 
Constitution  the  President  repeatedly  sent  to  the  Senate 
for  confirmation  the  names  of  persons  nominated  by  him  to 
negotiate  treaties.  There  were  several  instances  during 
this  period,  however,  in  which  the  President  appointed 
special  agents  for  this  purpose  without  Senatorial  confirma- 
tion. Thus  on  October  13, 1789,  President  Washington  sent 
Gouverneur  Morris  to  Great  Britain  as  a  private  agent  to 
negotiate  a  treaty  of  commerce,  and  on  March  2,  1793,  he 
commissioned  David  Humphreys  to  negotiate  with  Algiers. 
Since  1815  the  instances  in  which  the  President  has  sent 
to  the  Senate  the  names  of  persons  designated  to  negotiate 
treaties  have  been  exceptional.  An  investigation  of  this 
subject  was  made  in  1888,  and  the  results  were  published  in 
the  minority  report  of  the  Senate  committee  on  foreign 
relations  relative  to  the  proposed  fisheries  treaty  with  Great 
Britain.  According  to  this  compilation,  473  persons  were 
employed  by  the  United  States  in  conducting  negotiations 
from  1789  to  1888.  Of  these  thirty-two  were  appointed  by 
the  President  with  the  advice  and  consent  of  the  Senate, 
three  were  appointed  by  the  Secretary  of  State,  and  438 
were  appointed  by  the  President  alone.^  Between  1888  and 
1891,  the  names  of  treaty  commissioners  were  submitted  to 
the  Senate  in  three  instances.    But  since  the  latter  date, 

*For  lists  of  cases  of  Presidential  appointments  without  Senatorial  con- 
firmation, see  Moore,  Digest  of  Internat.  Law,  IV,  452-457;  Foster,  Practice 
of  Diplomacy,  198-203;  and  Wriston,  ''Presidential  Special  Agents  in  Di- 
plomacy," Am.  Pol.  Sci.  Bev.,  X,  481-499   (Aug.,  1916). 

^Senate  doc.  231,  56th  Cong.,  2nd  sess.,  part  8,  pp.  337-362.  Between  1827 
and  1880  no  names  of  treaty  negotiators  were  sent  to  the  Senate.  Ibid.,  p.  333. 
It  should  be  noted,  however,  that  some  of  the  438  cases  in  which  persona 
were  appointed  by  the  President  alone  were  recess  appointments  which  the 
Senate  subsequently  confirmed. 


68  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

there  have  been  no  cases  of  the  sort.^    With  reference  to 
such  appointments,  the  minority  report  mentioned  says : 

*  *  The  constitutional  power  of  the  President  to  select  the 
agents  through  whom  he  will  conduct  such  business  is  not 
affected  by  the  fact  that  the  Senate  is  or  is  not  in  session 
at  the  time  of  such  appointment  or  while  the  negotiation  is 
being  conducted,  or  the  fact  that  he  may  prefer  to  withhold, 
even  from  the  Senate,  or  from  other  countries,  the  fact  that 
he  is  treating  with  a  particular  power  or  on  a  special  sub- 
ject. The  secret-service  fund  that  Congress  votes  to  the 
Department  of  State  annually  is  that  from  which  such 
agents  are  usually  paid.  That  is  the  most  important  reason 
for  such  appropriations. '  *  ^ 

As  illustrative  of  the  practice  of  the  President  in  sending 
special  agents  without  Senatorial  confirmation,  a  few  in- 
stances may  be  specifically  mentioned.  In  1817  President 
Monroe  sent  three  commissioners  to  the  rebelling  Spanish- 
American  colonies  to  inquire  into  conditions  with  a  view  to 
recognition  of  their  independence.  The  names  were  not  sent 
to  the  Senate,  although  that  body  was  in  session  when  the 
commissioners  sailed.  In  this  case  it  would  not  have  been 
appropriate  to  appoint  regular  diplomatic  representatives, 
since  there  was  no  independent  government  to  which  they 
could  be  accrediteH.  A  special  item  in  the  diplomatic  ap- 
propriation bill  was  inserted  for  the  salaries  and  expenses 
of  the  commissioners;  but,  on  objection  made  by  Henry 
Clay  on  the  ground  that  the  appointees  had  not  been  con- 
firmed by  the  Senate,  it  was  stricken  out,  and  provision  was 
made  for  their  compensation  out  of  the  contingent  fund 
under  the  head  of  incidental  expenses. 

In  1847  President  Polk  ordered  Nicholas  Trist  to  Mexico 
on  a  secret  mission  to  negotiate  a  treaty  of  peace,  should  he 
find  the  conditions  favorable.    Trist  was  also  given  extraor- 

*  House  rept.  387,  66th  Cong.,  1st  sess.,  part  2,  p.  5,  in  which  it  is  pointed 
out  that  in  only  thirty-five  instances  lias  the  President  sent  the  names  of 
treaty  negotiators  to  the  Senate,  while  in  between  500  and  600  instances  he 
has  made  the  appointment  without  the  advice  and  consent  of  the  Senate. 

^Sen.  doc.  231,  VIII,  333. 


I 


DIPLOMATIC  INTERCOURSE :  PERSONNEL  69 

dinary  powers  with  reference  to  the  direction  of  military 
and  naval  operations.  Although  recalled,  he  persisted  in 
negotiating  the  treaty  of  Guadeloupe  Hidalgo,  which  was 
subsequently  ratified. 

It  may,  of  course,  and  frequently  does,  happen  that  gen- 
eral diplomatic  or  treaty  negotiations  are  conducted,  not 
by  mere  Presidential  agents,  but  by  the  Secretary  of  State 
or  by  the  regular  diplomatic  representatives  of  the  United 
States  at  foreign  capitals,  whose  appointments  have  been 
confirmed  by  the  Senate.  In  the  case  of  the  Secretary  of 
State,  however,  the  Senate,  by  custom,  usually  confirms 
without  question  whomsoever  the  President  may  nominate 
to  that  office,  while  the  action  of  the  Senate  upon  the  nomi- 
nations both  of  the  Secretary  and  of  the  regular  diplomatic 
representatives  is  usually  taken  without  regard  to,  or  even 
without  knowledge  of,  any  particular  negotiations  which 
they  may  be  called  upon  to  conduct  in  the  course  of  their 
duties.  It  sometimes  happens,  however,  in  the  case  of  im- 
portant or  delicate  negotiations,  that  the  President  prefers 
to  entrust  them  to  specially  selected  agents  rather  than  to 
the  regular  diplomatic  representatives.  Thus  in  1901,  while 
the  Senate  was  in  session.  President  McKinley,  without  con- 
firmation by  that  body,  commissioned  W.  W.  Rockhill  as 
plenipotentiary  to  negotiate  a  treaty  for  the  settlement  of 
the  Boxer  troubles.  The  best  known  instance  of  this  sort, 
however,  occurred  in  1893,  when  J.  H.  Blount  was  appointed 
by  President  Cleveland,  without  Senatorial  confirmation, 
as  a  special  commissioner  to  the  Hawaiian  Islands  with 
powers  which,  in  all  matters  affecting  the  relations  of  the 
United  States  to  the  islands,  were  declared  in  his  instruc- 
tions to  be  ** paramount*'  to  those  of  the  regular  minister. 
This  unusual  procedure  aroused  criticism  in  the  Senate,  and 
a  minority  of  the  foreign  relations  committee  of  that  body 
denounced  it  as  unconstitutional.^  It  was  also  declared  by 
an  outside  observer  that,  **if  the  President  may  appoint  a 

*  Senate  doc.  231,  56th  Cong.,  2nd  sess.,  part  6,  p.  395. 


70  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

diplomatic  agent  with  paramount  power,  the  office  of  the 
Senate  in  the  appointing  power  is  superfluous.'^^  The 
President's  action,  however,  was  upheld  by  the  majority 
report  of  the  Senate  committee,  as  follows : 

**A  question  has  been  made  as  to  the  right  of  the  Presi- 
dent to  dispatch  Mr.  Blount  to  Hawaii  as  his  personal  rep- 
resentative for  the  purpose  of  seeking  the  further  informa- 
tion which  the  President  believed  was  necessary  in  order  to 
arrive  at  a  just  conclusion  regarding  the  state  of  affairs  in 
Hawaii.  Many  precedents  could  be  quoted  to  show  that 
such  power  has  been  exercised  by  the  President  on  various 
occasions  without  dissent  on  the  part  of  Congress  or  the 
people  of  the  United  States.  The  employment  of  such 
agencies  is  a  necessary  part  of  the  proper  exercise  of  the 
diplomatic  power  which  is  entrusted  by  the  Constitution 
with  the  President.  Without  such  authority  our  foreign 
relations  would  be  so  embarrassed  with  difficulties  that  it 
would  be  impossible  to  conduct  them  with  safety  or  success. 
These  precedents  also  show  that  the  Senate,  though  in 
session,  need  not  be  consulted  as  to  the  appointment  of 
such  agents,  or  as  to  the  instructions  which  the  President 
may  give  them. '  '^ 

The  majority  of  the  committee  thus  upheld  the  practice 
of  the  President  in  this  respect  not  only  on  the  ground  of 
precedent,  but  also  on  the  basis  of  necessity.  The  argument 
from  necessity  is  also  potent  where,  as  sometimes  happens, 
the  President  deems  secrecy  in  negotiations  indispensable 
to  their  success.^  The  practice  has  also  been  upheld  on  the 
ground  that  it  is  implied  in  the  President's  initiative  in 
foreign  affairs  and  also  in  Congressional  appropriation 
acts.*  The  President  very  largely  controls  the  means  of 
conducting  treaty  and  other  negotiations,  and  there  would 
seem  to  be  no  constitutional  limitation  to  prevent  him  from 

*F.  N.  Thorpe,  "Can  the  President  Appoint  Paramount  Diplomatic  Agents 
Without  the  Consent  of  the  Senate?"  Am.  Law  Begister,  N.  S.,  XXXIII,  262. 
See  also,  ibid.,  Ill  ff. 

2  Senate  doc.  231,  56th  Cong.,  2nd  sess.,  part  6,  p.  387. 

*Cf.  remarks  of  James  Buchanan,  in  Cong.  Globe,  IX,  473,  quoted  by 
Wriston,  Am.  Pol.  Sd.  Bev.,  X,  487. 

*  Wriston,  loc.  cit.,  482-488. 


DIPLOMATIC  INTERCOURSE:  PERSONNEL  71 

negotiating  a  treaty  in  person.  When  the  President  thus 
acts  in  person,  it  is  not  a  case  of  self-appointment,  but 
rather  the  performance  of  the  constitutional  function  di- 
rectly instead  of  through  agents.* 

Some  express  Congressional  authority  may  perhaps  be 
found  for  the  appointment  of  Presidential  agents.  Thus, 
by  act  of  March  3, 1897,  Congress  authorized  the  President, 
whenever  he  should  determine  that  the  United  States  ought 
to  be  represented  at  an  international  conference  on  bimetal- 
lism, to  appoint  five  or  more  commissioners  to  such  confer- 
ence and  appropriated  a  lump  sum  for  the  compensation  and 
expenses  of  such  commissioners.  Congress  may,  of  course, 
vest  the  appointment  of  inferior  officers  in  the  President 
alone,  but  the  commissioners  provided  for  by  this  act  could 
hardly  be  classed  as  inferior  officers,  since  their  positions 
were  lacking  in  the  characteristics  of  an  office,  which  have 
been  described  as  embracing  the  ideas  of  ^  ^  tenure,  duration, 
emolument  and  duties."  It  was  rather  a  transient  or  oc- 
casional employment.^ 

Congressional  authority  for  the  appointment  of  Presi- 
dential agents,  however,  is  usually  found  in  occasional  acts 
providing   special   or   additional   compensation   for   such 

*  Cf .  the  following  remarks  of  Senator  Spooner  in  his  debate  in  the  Senate 
in  1906  with  Senator  Bacon:  "He  [the  President]  may  employ  such  agencies 
as  he  chooses  to  negotiate  the  proposed  treaty.  He  may  employ  the  ambas- 
sador, if  there  be  one,  or  a  minister  or  a  chargi  d'affaires,  or  he  may  use  a 
person  in  private  life  who  he  thinks  by  his  skill  or  knowledge  of  the  language 
or  people  of  the  country  with  which  he  is  to  deal  is  best  fitted  to  negotiate 
the  treaty.  He  may  issue  to  the  agent  chosen  by  him — and  neither  Congress 
nor  the  Senate  has  any  concern  as  to  whom  he  chooses — such  instructions  as 
seem  to  him  wise.  He  may  vary  them  from  day  to  day.  That  is  his  concern. 
The  Senate  has  no  right  to  demand  that  he  shall  unfold  to  the  world  or  to  it, 
even  in  executive  session,  his  instructions  or  the  project  or  progress  of  the 
negotiation.  I  said  *  right.'  I  use  that  word  advisedly  in  order  to  illustrate 
what  all  men  who  have  studied  the  subject  are  willing  to  concede — that  under 
the  Constitution,  the  absolute  power  of  negotiation  is  in  the  President  and  the 
means  of  negotiation  subject  wholly  to  his  will  and  judgment."  Quoted  in 
Corwin,  President's  Control  of  Foreign  Eelations,  171-2. 

*  See  U.  S.  V.  Hartwell,  6  Wall.,  385,  393,  quoted  by  Willoughby,  Constitw- 
tional  Law  of  the  U.  S.,  528,  and  the  opinion  of  the  attorney-general  that  a 
delegate  to  the  International  Conference  of  American  States  is  not  an  oflacer 
of  the  United  States.  23  Op.  Atty.-Gen.,  533,  quoted  by  Moore,  Digest  of 
Internat.  Law,  IV,  440.  Cf .  also  U.  S.  v.  Germaine,  99  U.  S..  508,  512  and  U.  S. 
V.  Mouat,  124  U.  S.,  303. 


72  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

agents  and  more  especially  by  implication  in  a  series  of 
acts  beginning  with  that  of  July  1,  1790,  providing  a  con- 
tingent fund  for  foreign  intercourse  at  the  disposal  of  the 
President,  and  in  a  provision  of  those  acts  now  incorporated 
in  the  Eevised  Statutes  allowing  payments  to  be  made  from 
such  contingent  fund  on  Presidential  receipts  or  certificates 
without  vouchers  specifically  accounting  for  such  expendi- 
ture.^ 

Although  Congressional  authority  thus  exists,  at  least 
by  implication,  for  the  appointment  of  Presidential  special 
agents,  nevertheless  that  practice  has  not  escaped  occa- 
sional opposition  from  Congress  and  from  the  Senate.  In 
1882,  the  President  negotiated  a  treaty  with  corea  through 
a  naval  officer  as  his  special  agent.^  In  advising  and  con- 
senting to  the  ratification  of  the  treaty,  the  Senate  attached 
a  reservation  to  the  effect  that  it  did  not  thereby 

**  admit  or  acquiesce  in  any  right  or  constitutional  power 
in  the  President  to  authorize  or  empower  any  person  to 
negotiate  treaties  or  carry  on  diplomatic  negotiations  with 
any  foreign  power,  unless  such  person  shall  have  been  ap- 
pointed for  such  purpose  or  clothed  with  such  power  by  and 

*E.  S.,  sect.  291.  This  provision  is  as  follows:  ** Whenever  any  sum  of 
money  has  been  or  shall  be  issued  from  the  Treasury,  for  the  purposes  of 
foreign  intercourse  or  treaty  with  foreign  nations  in  pursuance  of  any  law, 
the  President  is  authorized  to  cause  the  same  to  be  duly  settled  annually  with 
the  proper  accounting  officers  of  the  Treasury,  by  causing  the  same  to  be 
accounted  for,  specifically,  if  the  expenditure  may,  in  his  judgment,  be  made 
public;  and  by  making  or  causing  the  Secretary  of  State  to  make  a  certif- 
icate of  the  amount  of  such  expenditure  as  he  may  think  it  advisable  not  to 
specify;  and  every  such  certificate  shall  be  deemed  a  sufficient  voucher  for 
the  sum  therein  expressed  to  have  been  expended."  This  provision  thus 
enables  the  President  to  maintain  a  secret  service  fund,  without  specifically 
accounting  for  expenditures  therefrom. 

A  request  made  by  the  House  of  Representatives  through  House  resolution 
of  Apr.  9,  1846,  calling  upon  the  President  for  information  in  regard  to 
expenditures  on  presidential  certificates  made  by  his  predecessors  was  refused 
by  President  Polk.  See  his  message  in  Eichardson,  Mess,  and  Pap,  of  the 
Presidents,  IV,  431-6;  E.  C.  Mason,  "Congressional  Demands  upon  the 
Executive  for  Information,"  Papers  of  Am.  Hist.  Assoc.,  V,  370;  and  Hinds, 
Precedents,  II,  1026.  In  1911,  President  Taft  issued  an  executive  order  for- 
bidding the  Secretary  of  State  or  any  other  officer  or  employee  in  the  State 
Department  to  give  information  concerning  moneys  expended  and  accounted 
for  by  certificate,  except  upon  direction  of  the  President.  Order  No.  1382, 
July  7,  1911.  Cf.  the  President's  executive  order  No.  1062  of  Apr.  14,  1909, 
cited  above,  p.  19. 

'  Paullin,  Diplomatic  Negotiations  of  American  Na^al  Officers,  320. 


DIPLOMATIC  INTERCOURSE :  PERSONNEL  73 

with  the  advice  and  consent  of  the  Senate,  except  by  the 
Secretary  of  State  or  diplomatic  officer  appointed  by  the 
President  to  fill  a  vacancy  during  the  recess  of  the 
Senate/' 1 

The  question  may  be  raised  whether  Congress  could  curb 
the  practice  of  the  President  in  appointing  special  diplo- 
matic agents  by  passing  an  act  requiring  that  such  agents 
or  delegates  should  be  appointed  by  and  with  the  advice  and 
consent  of  the  Senate.  In  1919  an  amendment  was  adopted 
to  a  House  bill  authorizing  the  President  to  call  an  inter- 
national telegraphic  conference  and  to  appoint  delegates 
thereto,  requiring  that  such  appointments  should  be  made 
by  and  with  the  advice  and  consent  of  the  Senate.^  With 
reference  to  this  amendment,  reports  were  made  from  the 
House  Committee  on  foreign  affairs.  The  majority  report 
defended  the  amendment,  on  the  ground  that  one  of  the 
purposes  of  the  conference  was  to  draft  a  treaty  and  that 
there  were  precedents  for  the  Senate's  confirmation  of 
treaty  negotiators.^  It  is  true,  as  we  have  seen,  that  the 
President  has  sometimes  sent  the  names  of  treaty  ne- 
gotiators to  the  Senate  for  confirmation.  When  he  has 
done  so,  there  has  usually  been  political  harmony  be- 
tween him  and  the  upper  house.  In  this  way  he  may 
virtually  consult  the  other  branch  of  the  treaty-mak- 
ing body  in  advance.  In  confirming  the  nominations  the 
Senate  practically  authorizes  the  commencement  of  ne- 
gotiations, and,  although  not  thereby  committing  itself  to 
the  approval  of  the  results,  it  is  likely  to  look  with 
a  more  favorable  eye  upon  the  project  of  a  treaty  framed 
by  negotiators  in  whose  appointment  it  has  had  some 
share.  As  was  pointed  out  in  the  minority  report  of  the 
committee,  however,  the  cases  in  which  the  President 
has  voluntarily  sent  the  names  of  treaty  negotiators  or 

*  Malloy,  Treaties,  etc.,  I,  340.  A  Senate  resolution  of  similar  import  was 
tabled  in  1834.    Sen.  Exec.  Jour.,  IV,  413,  445. 

"Cong.  Record,  October  22,  1919,  vol.  58,  p.  7348.  The  amendment  was 
carried  in  the  House  by  a  vote  of  161  to  125. 

•House  rept.  387,  66th  Cong.,  Ist 


74  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

other  special  agents  to  the  Senate  for  confirmation  do  not 
constitute  a  precedent  for  an  act  of  Congress  requiring  him 
to  do  so.i  If  Congress  by  act  constitutes  the  position  of  a 
delegate  to  an  international  conference  an  office  under  the 
United  States  and  attaches  thereto  a  definite  salary,  it  can 
doubtless  require  the  President  to  submit  nominations  to 
the  Senate.  But  it  is  difficult  to  see  how  compliance  with 
the  act  could  be  compelled  by  any  means  short  of  impeach- 
ment, so  long  as  the  delegate  is  paid  from  the  contingent 
fund  on  Presidential  certificates,  or  is  willing  to  serve 
without  compensation.  Such  an  act  would  be  indicative  of 
the  opinion  of  Congress  and  entitled  to  respect,  but  it  would 
not  necessarily  be  mandatory  upon  the  President.  What- 
ever treaty  should  be  negotiated  by  the  President's  ap- 
pointees would  have  to  be  submitted  to  the  Senate  for  its 
advice  and  consent,  so  that  the  rights  of  that  body  would 
ordinarily  be  sufficiently  safeguarded.  Congress  might, 
however,  provide  that  no  compensation  should  be  paid  out 
of  the  public  funds  to  delegates  to  an  international  confer- 
ence unless  the  Senate  has  advised  and  consented  to  their 
appointment,  and  this  would  probably  have  controlling 
effect  as  to  the  compensation  of  such  delegates,  even  though 
a  contingent  fund  for  the  general  purpose  of  foreign  inter- 
course should  at  the  same  time  be  provided.^ 

A  reaction  against  what  was  considered  to  be  an  undue 
use  by  President  Wilson  of  special  agents  in  conducting  our 
foreign  relations  was  indicated  by  the  language  of  one  of 
the  proposed  reservations!  to  the  Treaty  of  Versailles 
adopted  by  the  Senate  in  November,  1919,  providing  that 
no  person  should  represent  the  United  States  in  the 
assembly  or  council  of  the  League  of  Nations  unless  Con- 
gress should  have  provided  for  his  appointment  and  defined 

*  House  rept.  387,  ^6th  Cong.,  1st  sess.,  part  2,  p.  4. 

'By  an  act  of  1810  Congress  provided  that  no  charge  d'affavres  nor 
secretary  of  embassy  or  legation  should  be  entitled  to  compensation  unless 
appointed  by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate.    2  Stat,  at  L.,  608;  E.  S.,  sect.  1684. 


DIPLOMATIC  INTERCOURSE:  PERSONNEL  75 

his  powers  and  duties.  The  reservation  also  provided  that 
no  citizen  of  the  United  States  should  be  appointed  as  a 
member  of  the  various  commissions  or  other  bodies  under 
the  treaty  except  with  the  approval  of  the  Senate.  What- 
ever practical  justification  there  may  have  been  for  this 
proposed  reservation,  it  manifestly  ran  counter  to  the  Con- 
stitution in  several  respects.  It  undertook  to  place,  through 
the  treaty-making  process,  a  limitation  upon  the  constitu- 
tional power  of  Congress  to  provide  for  the  appointment 
of  inferior  officers  by  the  President  alone.  Such  an  at- 
tempted limitation  could  not,  however,  be  legally  binding 
upon  Congress.  The  proposed  reservation  was  also  uncon- 
stitutional in  so  far  as  it  purported  to  place  a  restriction 
upon  the  President's  power  to  fill  vacancies  during  the 
recess  of  the  Senate.^  Although  the  regular  and  permanent 
representatives  of  the  United  States  on  such  a  body  as  the 
assembly  or  council  of  the  League  of  Nations  would  doubt- 
less fall  within  the  category  of  officers,  and  their  appoint- 
ments would  therefore  require  Senatorial  approval  unless 
designated  by  Congress  as  inferior  officers,  it  might  be 
appropriate,  in  some  cases,  for  the  President  to  employ 
special  agents  temporarily  on  some  of  the  subordinate  com- 
missions or  other  bodies  to  be  created  under  the  treaty. 
The  objections  to  the  proposed  reservation  were  evidently, 
to  some  extent,  recognized  by  the  Senators  in  charge,  since 
it  was  subsequently  modified  so  as  to  eliminate  the  require- 
ment regarding  Senatorial  approval.  ^ 

The  appointment  by  the  President  of  special  diplomatic 
agents  is  doubtless  to  some  extent  an  anomalous  practice, 
and  one  scarcely  authorized  by  the  theory  of  the  Constitu- 
tion. ~~It  may  be  used  by  the  President  as  a  means  of  safe- 
guarding his  initiative  in  foreign  relations  from  invasion 
by  the  Senate,  and  it  may  be  justified  in  certain  cases, 

*  Speech  of  Senator  Walsh  of  Montana,  Cong.  Eecord,  Nov.  15,  1919,  vol.  58, 
p.  9053;  Q.  Wright,  ''Validity  of  the  Proposed  Reservations  to  the  Peace 
Treaty,''  Columbia  Law  Review,  138  (February,  1920). 

*  Cong.  Record,  March  19,  1920,  p.  4899. 


76  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

especially  where  the  international  situation  admittedly  re- 
quires prompt  and  secret  action.^  But  if  used  to  excess  it 
may  properly  be  objected  to  as  a  virtual  evasion  of  the 
Constitution  and  as  tending  toward  personal  and  autocratic 
government. 


RECESS  APPOINTMENTS 

Foreign  relations  should  be  carried  on  with  as  little  inter- 
ruption as  possible  through  accidental  or  unforeseen 
changes  in  the  personnel  of  the  diplomatic  force.  Conse- 
quently, inasmuch  as  neither  Congress  nor  the  Senate  is 
continuously  in  session,  provision  is  made  in  the  Constitu- 
tion for  the  President  to  fill  *^  vacancies  that  may  happen 
during  the  recess  of  the  Senate  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next  session/'  ^  gy 
virtue  of  this  power  the  President  has  frequently  made  ap- 
pointments to  diplomatic  positions  by  granting  temporary 
commissions  during  the  recess  of  the  Senate.  An  ambassa- 
dor or  minister  of  the  United  States  accredited  to  a  foreign 
government  may,  for  various  reasons,  vacate  his  office  at 
any  time.  In  such  a  case  the  President  may  appoint  the 
secretary  of  embassy  or  legation  as  charge  d'affaires  ad 
Merim,  and,  if  the  Senate  is  not  in  session,  grant  him  a 
temporary  commission.  The  **full  power'*  given  by  the 
President  to  a  commissioner  to  negotiate  a  treaty  is  given 

*  Special  diplomatic  agents  were  employed  to  a  notable  extent  during 
President  Wilson's  administrations.  This  was  doubtless  due  in  part  to  the 
unusually  disturbed  condition  of  international  relations  during  this  period. 
Several  special  Presidential  agents  were  sent  to  Mexico  during  the  time  when 
it  was  the  policy  of  our  Government  not  to  recognize  the  de  jure  character  of 
the  government  of  that  country,  and  when,  therefore,  it  would  not  have  been 
feasible  to  send  regular  diplomatic  oflScers.  On  May  12,  1917,  the  State 
Department  announced  the  membership  of  a  special  diplomatic  mission  to 
Eussia,  including  Mr.  Elihu  Eoot,  bearing  the  title  of  ambassador  extraor- 
dinary, and  six  ministers  plenipotentiary,  together  with  two  ministers  rep- 
resenting the  army  and  navy.  In  this,  case,  as  in  the  other  instances  of 
special  missions,  there  was  no  Congressional  nor  Senatorial  authority,  and  the 
project  was  carried  out  on  the  authority  of  the  President  alone. 
"Art.  II,  sect.  2,  cl.  3. 


DIPLOMATIC  INTERCOURSE :  PERSONNEL  77 

specially  in  each  particular  case  and  may  be  conferred  upon 
the  resident  minister  as  well  as  upon  a  special  commis- 
sioner. If  the  President  appoints  an  envoy  to  a  foreign 
government  with  the  particular  object  of  negotiating  a 
treaty,  and  sends  his  name  to  the  Senate  for  confirmation, 
as  President  Washington  did  in  1794  when  he  appointed 
John  Jay  to  negotiate  a  treaty  with  Great  Britain,  the 
Senate,  in  advising  and  consenting  to  the  appointment,  vir- 
tually gives  its  consent  in  advance  to  the  opening  of  nego- 
tiations. If  the  Senate  declines  to  confirm  the  appointment 
because  it  is  opposed  to  the  making  of  such  a  treaty,  the 
President  may,  during  the  recess  of  the  Senate,  appoint  an 
envoy  for  the  purpose  by  granting  him  a  temporary  com- 
mission. Under  the  Constitution,  this  commission  expires 
at  the  end  of  the  next  session.  By  that  time,  however,  even 
though  the  Senate  fails  to  confirm  the  appointment,  the 
treaty  negotiations  may  have  been  completed. 

When  President  Madison,  in  1813,  appointed  three  com- 
missioners to  negotiate  a  treaty  of  peace  with  Great  Britain, 
under  the  mediation  of  Russia,  the  Senate  was  not  in 
session.  Subsequently,  the  question  was  raised  in  that 
body  as  to  whether  the  President  had  the  power  to  make 
such  appointments  under  the  constitutional  provision  re- 
lating to  the  filling  of  vacancies  that  may  happen  during  a 
recess.  It  was  argued  that  no  vacancy  can  happen  in  an 
office  not  previously  full.^  This  narrow  construction,  how- 
ever, has  not  prevailed.  Attorney-General  Wirt  declared, 
in  1823,  that  the  term,  **may  happen,''  is  equivalent  to 
**may  happen  to  exist,"  and  that  without  such  interpreta- 
tion, the  constitutional  provision  could  not  be  executed  in 
itfe  spirit,  reason,  and  purpose.^  Attorney-General  Gushing 
declared  in  1855  that  this  question  was  obsolete  and  that 

^Eesolutions  of  Senator  Gore,  March  7,  1814,  Benton's  Ahridgvient  of 
Debates,  V,  85. 

"  1  Op.  U.  S.  Atty.-Gen.,  631.  Cf.  the  opinion  of  Attorney-General  Taney, 
2  ibid.,  525.    See  also  12  ibid.,  32;    19  ibid.,  261. 


78  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

there  was  no  doubt  that  the  President  might  appoint  a  dip- 
lomatic representative,  during  the  recess  of  the  Senate, 
**in  a-perfectly  new  case.''  ^ 


[For  References,  see  p.  96.] 

*7  Op.  U.  S.  Atty.-Gen.,  212. 


CHAPTER  V 

DIPLOMATIC  INTERCOURSE:   PROCEDURE 

OTHER  aspects  of  diplomatic  intercourse  which  require 
consideration  are  participation  in  international  con- 
ferences and  the  removal  of,  instructions  to,  and  reception 
of  diplomatic  representatives. 

PARTICIPATION  IN  INTERNATIONAL  CONFERENCES 

On  account  of  our  traditional  policy  of  avoiding  foreign 
entanglements,  and  because  of  the  absorption  of  our  ener- 
gies in  the  development  of  a  comparatively  new  country, 
the  United  States  has  been  somewhat  wary  about  taking 
part  in  international  conferences.  The  initiative  in  the 
calling  of  an  international  conference,  or  in  arranging  for 
the  participation  of  the  United  States  therein,  has  usually 
been  taken  by  the  President,  though  sometimes  at  the  sug- 
gestion of  Congress,  In  a  special  message  to  the  Senate, 
December,  1825,  President  J.  Q.  Adams  informed  that  body 
of  an  invitation  which  the  United  States  had  received  to 
participate  in  a  conference  to  be  held  at  Panama  the  fol- 
lowing year.  He  also  informed  the  Senate  that  he  had 
accepted  this  invitation,  which  act  he  deemed  to  be  within 
his  constitutional  competence ;  but  he  added  that  he  desired, 
before  going  further  with  the  project,  to  secure  the  support 
of  the  Senate  in  advising  and  consenting  to  the  appoint- 
ment of  envoys  to  the  conference,  as  well  as  of  Congress 
in  passing  the  necessary  appropriations.^  The  proposal 
aroused  considerable  opposition.     The  Senate  committee 

*  Richardson,  Mess,  and  Pap.  of  the  Presidents,  II,  318. 

79 


i 


80  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

on  foreign  relations  made  a  report  opposing  tlie  project 
and  declaring  that  the  committee  had  been  embarrassed 
by  the  fact,  as  stated  in  the  President's  message,  that  he 
Ijad  already  accepted  the  invitation.^  After  much  debate, 
however,  the  Senate  finally  confirmed  the  nominations  of 
the  envoys  to  the  conference  and  Congress  appropriated 
the  necessary  funds. ^ 

Congress  has  sometimes  undertaken  to  authorize  the 
President  to  call  an  international  conference,  or  to  accept 
an  invitation  on  behalf  of  our  Government  to  participate 
in  one.  Thus  by  an  act  passed  in  1888  Congress  *' author- 
ized and  requested''  the  President  to  invite  the  several 
Amerieian  governments  to  join  the  United  States  in  a 
general  American  conference  to  be  held  in  Washington  in 
1889.^  One  section  of  the  act  undertook  to  outline  specifi- 
cally the  purposes  for  which  the  conference  should  be  called, 
and  expressly  provided  that  the  President  *  ^  shall  set  forth 
that  the  conference  is  called  to  consider"  these  purposes. 
Among  the  matters  named  were  several  on  which  Congress 
is  constitutionally  empowered  to  legislate,  including  the 
establishment  of  uniform  customs  regulations,  a  uniform 
system  of  weights  and  measures,  and  laws  to  protect  patent 
rights  and  copyrights.  In  relation  to  these  subjects  the 
position  of  Congress  was  stronger  than  with  regard  to 
other  matters  not  falling  within  its  'constitutional  compe- 
tence. In  spite  of  the  mandatory  "shall,"  however,  the 
President  could  not  be  legally  compelled  to  call  the  confer- 
ence, nor  to  limit  its  deliberations  to  the  consideration  of 
the  matters  specified  by  Congress.* 

^Senate  Exec.  Jour.,  Ill,  474  ff. 

^  For  a  summary  of  the  debate  in  the  House  on  the  proposition,  see  Hinds, 
Precedmts,  II,  1014-1018. 

^U.  S.  Stat,  at  L.,  50th  Cong.,  Ist  sess.,  p.  155.     (Act  of  May- 24,  1^88.) 

■*  This  act  became  a  law  without  the  signature  of  President^  Cleveland,  during 
whose  administration  it  was  passed.  The  presiding  officer  of  the  conference 
was  James  G.  Blaine,  secretary  of  state  under  President  Harrison.  To  Blaine 
has  often  been  attributed  the  merit  of  originating  the  Pan-American  idea.  • 
Eeinsch,  Public  International  Unions,  p.  78.  For  other  instances  of  acts  of 
Congress  authorizing  and  requesting  the  President  to  call  or  participate  ip 


DIPLOMATIC  INTERCOURSE:  PROCEDURE  81 

The  authority  thus  given  by  Congress  to  the  President 
to  call  or  participate  in  an  international  conference  may 
be  of  practical  importance  in  showing  the  support  by  the 
legislative  branch  of  the  policy  involved.  Should  a  confer- 
ence be  of  such  a  character  that  participation  in  it  by  the 
United  States  might  be  regarded  by  another  power  as  a 
ground  for  declaring  war  against  us,  Congressional  ap- 
proval of  our  participation  in  it  would  seem  to  be  desirable.^ 
Legally  speaking,  however,  the  President  need  not  wait, 
even  in  this  case,  for  specific  authority  from  Congress.  He 
might  instruct  our  regular  ambassador  or  minister  to  the 
country  in  which  the  conference  is  to  be  held  to  represent 
the  United  States  at  such  meeting.^  He  might  designate  a 
special  agent  to  attend  the  conference  and  provide  for  his 
compensation  out  of  the  contingent  fund.  In  these  ways 
the  President,  on  his  sole  authority,  could  accept  an  invi- 
tation to  participate  in  an  international  conference.^  The 
President  has,  in  fact,  not  infrequently  accepted  such  invi- 
tations without  waiting  for  any  specific  Congressional 
authority,  and  has  appointed  the  American  representatives 
without  sending  their  names  to  the  Senate.  This  was  done, 
for  example,  in  the  case  of  the  Hague  Conferences  of  1899 
and  1907  and  the  Algeciras  Conference  in  1906.^ 
'  Acceptance  by  the  President  of  invitations  to  participate 
in  European  conferences  without  authority  from  Congress 
or  the  Senate  has  been  denounced  as  involving  us  in  en- 

international"  conferences,  see  39  U.  S.  "^tat,  at  L.,  618 ;  also  acts  of  March  3, 
1897,  and  February  20,  1907.    See  also  U.  S.  For.  Eels.,  1878-9,  p.  835. 

*  This  was  alleged  in  the  case  of  ohr  participation  in  the  Panama  Congress 
of  1826.    BentoA,  Abridgment  of  Debates  in  Congress,  VIII,  423  ff ;  IX,  107  ff. 

^Thus,  President  Koosevelt  appointed  our  ambassador  to  Italy,  Mr.  Henry 
White,  to  represent  the  United  States  at  the  international  conference  held  at 
Eome  to  form  the  International  Agricultural  Institute.  U.  S.  For.  Eels.,  1905, 
p.  560. 

'  This  was  admitted  by  Martin  Van  Buren  in  the  debate  in  the  Senate  on 
the  proposed  American  mission  to  the  Panama  Congress  of  1826.  Benton, 
Abridgment;  VIII,  441. 

*U.  S.  For.  Eels.,  1898,  p.  543;  ibid.,  1906,  pt.  2,  p.  1627.  The  United 
States  participated  in  the  Algeciras  Conference  as  a  signatory  to  the  treaty  of 
Madrid  of  1880,    Malloy,  Treaties,  etc.,  I,  1220. 


82  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tanglements  by  mere  executive  action.^  The  practice  has 
aroused  opposition  especially  when  it  was  capable  of  being 
construed  as  committing  the  United  States  to  the  payment 
of  expenses  connected  with  the  conference  before  Congress 
Kad  given  authority  therefor.  The  question  might  be  raised, 
therefore,  whether  Congress  could  constitutionally  limit  the 
discretion  of  the  President  in  extending  or  accepting  invi- 
^  tations  to  participate  in  international  conferences.  This, 
in  fact,  it  has  attempted  to  do.  In  the  deficiency  appropria- 
tion bill  passed  on  March  4,  1913,  a  provision  was  inserted 
which  declared  that  **  hereafter  the  Executive  shall  not 
extend  or  accept  any  invitation  to  participate  in  any  inter- 
national congress,  conference,  or  like  event,  without  first 
having  specific  authority  of  law  to  do  so."  ^  By  this  stipu- 
lation Congress  assumed  to  exercise  the  power  of  con- 
trolling the  discretion  of  the  President  in  this  matter.  If 
the  provision  were  valid,  he  must  secure  in  each  particular 
case  the  prior  specific  authorization  of  Congress,  and  gen- 
eral authority  implied  from  the  existence  of  the  contingent 
fund  would  not  be  sufficient. 

Since  the  passage  of  the  act  of  1913,  the  President  has 
generally,  although  not  invariably,  complied  with  its  pro- 
visions. Thus,  on  September  10,  1919,  President  Wilson 
addressed  a  message  to  the  Senate  and  House  of  Eepre- 
sentatives  in  which,  after  reciting  the  provision  of  the  act 
of  1913  quoted  above,  he  transmitted  a  report  of  the  Secre- 
tary of  State  relative  to  the  proposed  International 
Telegraphic  Conference  to  be  held  in  Washington  in  1920, 
*^for  the  consideration  of  Congress  and  for  its  determina- 
tion whether  it  will  authorize  the  extension  of  the  invita- 

*Thus,  Senator  Bacon  declared:  .''The  Executive  may,  without  even  send- 
ing any  proposed  treaty  to  the  Senate,  continue  to  send  delegates  to  European 
international  political  conferences,  and  thus  in  time  practically  destroy  our 
recognition  of  the  long  established  doctrine  of  non-entanglement  by  us  in  such 
disputes.  The  sending  of  delegates  from  this  Government  to  the  Algeciras 
Conference  is  a  case  in  point. "  ' '  The  Treaty-Making  Power  of  the  President 
and  the  Senate,"  tforth  American  Review,  CLXXXII,  509  (Apr.,  1906). 

»37  U.S.  Stat.  atL.,  913. 


DIPLOMATIC  INTERCOURSE:  PROCEDURE  83 

lion,  and  the  appropriation  necessary  to  defray  the 
expenses  incident  thereto.'*^  In  this  message  the  Presi- 
dent did  not  expressly  request  authority  from  Congress  to 
extend  the  invitation,  although  such  a  request  seemed  to  be 
implied.  Even  so,  his  action  is  not  necessarily  to  be  con- 
strued as  a  recognition  of  any  legal  power  in  Congress  to 
control  his  discretion  in  this  respect,  but  rather  of  the  prac- 
tical control  of  Congress  in  granting  or  withholding  the 
necessary  appropriations.  To  this  extent,  the  act  of  1913 
represents  an  actual  extension  of  Congressional  authority, 
since,  in  most  cases,  participation  in  international  confer- 
ences involves  considerable  expense. 

In  the  act  of  1913  no  exception  was  made  in  the  case  of 
an  international  conference  at  which  a  treaty  is  to  be  nego- 
tiated. If  the  act  were  legally  valid  and  enforceable,  it 
might,  at  times,  operate  as  a  serious  check  upon  the  power 
of  the  President  to  negotiate  treaties.  Yet  by  the  practice, 
if  not  by  the  theory,  of  the  Constitution,  it  has  been  almost 
uniformly  recognized  that  the  negotiation  of  a  treaty  is 
solely  under  the  control  of  the  President,  subject  only  to 
the  necessity  of  securing  the  advice  and  consent  of  the 
Senate  to  its  ratification.^  It  seems  clear  that  in  negoti- 
ating a  treaty  through  participation  in  an  international 
conference,  either  in  person  or  by  his  appointees,  as  in  the 
cases  of  the  Hague  Conferences  of  1899  and  1907  and  the 
Paris  Conference  of  1919,  the  President  is  not  bound  to 
secure  from  Congress  such  specific  authority  as  the  act  of 
1913  purports  to  require.  Again,  could  Congress  limit  the 
discretion  of  the  President  as  commander-in-chief  of  the 
army  and  navy  from  entering,  either  in  person  or  by  his 
appointees,  an  international  conference,  during  the  course 
of  a  war,  at  which  the  terms  of  an  armistice  or  capitulation 

*  House  rept.  387,  66th  Cong.,  1st  sess.,  pt.  1,  p.  8.  The  President  followed 
the  same  procedure  with  reference  to  the  Sixth  Annual  International  Sanitary 
Conference  and  the  First  Odontologic  Latin- American  Congress  to  be  held  at 
Montevideo  in  September,  1920.  Cong.  Record,  May  15  and  May  20,  1920, 
pp.  7694  and  7976. 

'See  below,  Chap.  VIII. 


84  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

are  to  be  drawn  up  and  agreed  upon?  It  seems  clear  that 
any  attempt  of  Congress  to  do  so  would  be  in  excess  of  its 
powers.  Congress  can  constitutionally  withhold  funds 
which  would  enable  the  President  to  enter  a  conference  at 
which  the  international  good  faith  of  the  United  States 
might  be  pledged,  and  may  even  withhold  funds  necessary 
to  carry  out  such  a  pledge ;  but,  on  the  other  hand,  it  cannot 
limit  by  such  an  act  as  that  of  1913  the  constitutional  powers 
of  the  President  in  the  negotiation  of  treaties  and  in  the 
discharge  of  his  duties  as  commander-in-chief  of  the  army 
and  navy. 

Even  in  the  case  of  an  international  conference  at  which 
it  is  not  proposed  to  negotiate  a  treaty,  and  which  is  un- 
connected with  a  war,  any  attempt  by  Congress  to  limit 
the  President's  discretion  to  participate,  such  as  was  made 
in  the  act  of  1913,  would  be  of  doubtful  constitutionality, 
since  it  would  purport  to  limit  the  power  of  the  President 
to  treat  with  foreign  governments  which  the  Constitution 
impliedly  confers  upon  him  in  granting  him  the  right  to 
send  and  receive  ambassadors  and  other  public  ministers. 
If  the  President  should  see  fit  to  disregard  the  limitation 
attempted  to  be  imposed,  it  is  difficult  to  see  how  Congress 
could  control  him  in  this  respect,  short  of  impeachment, 
except  by  declining  to  pass  the  necessary  appropriations. 
This  being  true,  it  would  seem  that  the  same  principle  would 
apply  to  the  case  of  a  similar  limitation  attempted  to  be 
imposed  upon  the  President  through  a  Senate  reservation 
to  a  treaty.  Thus,  one  of  the  proposed  Senate  reservations 
to  the  Treaty  of  Versailles,  as  voted  upon  on  November  19, 
1919,  prohibited  any  person  from  representing  the  United 
States  under  the  Treaty  or  the  League  of  Nations,  or  from 
performing  any  act  for  or  on  behalf  of  the  United  States 
thereunder,  until  such  participation  and  appointment 
should  have  been  provided  for  and  the  powers  and  duties 
of  such  representatives  should  have  been  defined  by  law. 


DIPLOMATIC  INTERCOURSE :  PROCEDURE  85 

This  part  of  the  reservation  would  seem  to  trench  upon 
the  power  of  the  President,  recognized  in  practice,  of  treat- 
ing with  foreign  governments  through  special  diplomatic 
agents  without  specific  authority  of  law,  although  it  would 
doubtless  be  within  the  constitutional  competence  of  Con- 
gress to  provide  by  law  for  the  permanent  representation 
of  the  United  States  in  the  regular  organs  of  the  League.^ 

INSTRUCTIONS  TO  DIPLOMATIC  REPKESENTATIVES 

The  powers  and  duties  of  diplomatic  and  consular  officers 
of  the  United  States  are  derived  from  four  sources:  cus- 
tomary international  law,  treaties,  acts  of  Congress,  and 
executive  regulations.^  Such  functions  as  may  be  conferred 
by  customary  international  law  are  considered  as  falling  in 
that  part  of  the  whole  mass  of  powers  and  duties  which  is 
not  covered  by  instructions  derived  from  the  other  three 
sources.  The  functions  of  consuls  are  derived  to  a  consid- 
erable extent  from  treaties,  and  this  source  of  consular 
functions  was  recognized  by  an  act  of  Congress  of  1792 
which  provided  that  the  specification  by  Congress  of  certain 
powers  and  duties  of  consuls  was  not  to  be  **  construed  as 
implying  the  exclusion  of  others  resulting  from  the  nature 
of  their  appointments,  or  prescribed  by  any  treaty  or  con- 
vention under  which  they  may  act. ' '  ^ 

The  convention  of  1899  between  the  United  States  and 
Great  Britain  relating  to  the  tenure  and  disposition  of  real 
and  personal  property  provided  for  its  own  extension  to 
the  insular  territories  of  the  United  States  **only  upon 
notice  to  that  effect  being  given  by  the  representative  of 
the  United  States  at  London,  by  direction  of  the  treaty- 

*  The  proposed  Senate  reservation  was  modified  as  voted  upon  on  March  19, 
1920.  Cong.  Record,  vol.  59,  p.  4899.  Cf.  Q.  Wright,  "Validity  of  the 
Proposed  Reservations  to  the  Peace  Treaty/'  Columbia  Law  Bev.,  XX,  136-8 
(February,   1920). 

^  7  Op.  U.  S.  Atty.-Gen.,  249. 

'1  Stat,  at  L.,  257;  E.  S.,  sect.  1714. 


86  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

making  power  of  the  United  States.  ''^  In  this  curious  pro- 
vision the  attempt  was  made  to  subject  a  regular  diplo- 
matic representative  of  the  United  States,  in  a  certain 
particular,  to  the  direction  of  the  President  and  Senate. 
Although  the  general  powers  and  duties  of  diplomatic  rep- 
resentatives might,  to  some  extent,  be  regulated  by  inter- 
national agreement,  the  employment  of  the  treaty-making 
power  as  a  means  of  giving  specific  instructions  in  particu- 
lar cases  seems  hardly  to  be  an  appropriate  method  of 
procedure.  The  provision  of  the  convention  of  1899  is, 
moreover,  open  to  objection  as  attempting  to  regulate  by 
international  agreement  a  matter  which  is  properly  one  for 
purely  domestic  determination.^ 

The  more  usual  methods  of  prescribing  the  powers  and 
duties  of  diplomatic  and  consular  officers  are  Congressional 
acts  and  executive  regulations.  By  virtue  of  the  coefficient 
or  omnibus  clause,  together  with  the  commerce  clause,  of 
the  Constitution,  Congress  is  endowed  with  authority  to 
prescribe  powers  and  duties  for  diplomatic  arid  consular 
officers.^  In  the  case  of  officers  dealing  with  foreign  rela- 
tions, however,  Congress  has  prescribed  specific  regulations 
only  to  a  comparatively  small  extent.  It  has  provided  by 
act  that  no  diplomatic  or  consular  officer  shall  *' correspond 
in  regard  to  the  public  affairs  of  any  foreign  government 
with  any  private  person,  newspaper,  or  other  periodical,  or 
otherwise   than   with   the  proper  officers   of  the   United 

*Malloy,  Treaties^  etc.,  I,  775.  The  last  clause  of  this  provision  had 
originally  read,  *'by  direction  of  the  President/'  but  was  changed  by  a 
Senate  amendment. 

'Although  this  treaty  provided  that  the  direction  in  question  should  come 
from  the  * Hreaty-making  power,"  it  might  be  construed  to  mean  that  the 
direction  should  come  from  the  President  and  Senate  acting  jointly,  but  not 
through  the  making  of  a  treaty,  i.  e.,  not  subject  to  securing  the  consent  of 
any  other  power.  This  construction,  however,  does  not  materially  diminish  the 
objectionable  character  of  the  provision  from  the  standpoint  of  constitutional 
practice. 

•Cf.  Kendall  v.  U.  S.  ex  rel.  Stokes,  12  Pet.  524;  Shoemaker  v.  U.  S., 
147  U.  S.,  282.  The  powers  and  duties  conferred  by  Congress  should,  however, 
be  germane  to  the  oflS.ce,  and  not  inconsistent  with  the  Constitution.  Cf .  U.  S. 
V.  Ferreira,  13  How.,  40. 


DIPLOMATIC  INTERCOURSE:  PROCEDURE  87 

States/'  ^  For  the  most  part,  however,  Congress  has  left 
such  matters  to  be  dealt  with  by  executive  regulations. 
Thus,  in  organizing  the  Department  of  State,  it  provided, 
as  we  have  seen,  that,  in  the  management  of  foreign  affairs, 
the  Secretary  of  the  Department  should  **  perform  such 
duties  as  shall  from  time  to  time  be  enjoined  on  or  intrusted 
to  him  by  the  President. '^  ^  Congress,  however,  cannot 
limit  its  own  discretion,  and  the  provision  quoted  does  not 
prevent  it  from  itself  imposing  duties  upon  the  Secretary 
of  State.  Thus  by  act  of  1915  Congress  directed  the  Secre- 
tary to  keep  an  efficiency  record  of  secretaries  in  the  diplo- 
matic service  and  of  consular  and  departmental  officers  and 
employees.^ 

An  act  of  Congress  passed  in  1856  authorizes  the  Presi- 
dent **to  prescribe  such  regulations,  and  make  and  issue 
such  orders  and  instructions,  not  inconsistent  with  the  Con- 
stitution or  any  law  of  the  United  States,  in  relation  to 
the  duties  of  all  diplomatic  and  consular  officers.  ...  It 
shall  be  the  duty  of  all  such  officers  to  conform  to  such 
regulations,  orders,  and  instructions.''  *  In  the  absence  of 
such  an  act  of  Congress,  however,  the  President,  by  virtue 
of  his  general  executive  power,  might  issue  regulations  and 
instructions  and  secure  obedience  to  them  through  the 
exercise,  or  potential  exercise,  of  his  power  of  removal. 
In  1897  the  State  Department  published  a  volume  of  in- 
structions to  the  diplomatic  officers  of  the  United  States. 
In  addition,  the  published  volumes  of  the  *' Foreign  Rela- 
tions of  the  United  States''  and  the  manuscript  files  of  the 
State  Department  are  full  of  instructions  sent  to  our  diplo- 
matic representatives  abroad.^ 
^    A  distinction,  however,  must  be  made  between  the  laying 

» See  E.  S.,  sects.  1741,  1751. 

'  1  Stat,  at  L.,  28. 

•  38  Stat,  at  L.,  806. 

m  Stat,  at  L.,  60;  E.  S.,  sect.  1752. 

•A  volume  of  consular  regulations  was  published  in  1896,  and  the  rules 
which  it  contained  have  since  been  added  to  from  time  to  time.  House  doc. 
303,  54th  Cong.,  2nd  sess. 


88  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

down  of  general  rules  prescribing  the  duties  of  all  diplo- 
matic officers,  or  of  all  those  in  a  given  class,  and  the  giving 
of  special  instructions  to  diplomatic  agents  or  to  regular 
diplomatic  officers  with  reference  to  particular  matters 
which  may  come  up  in  the  course  of  their  duties.  The  for- 
mer function  is  one  which  is  to  some  extent  exercised  by 
Congress  and  the  Executive  together;  the  Executive  in  this 
case  merely  reinforcing  or  supplementing  the  Congres- 
sional provisions  or  filling  up  gaps  left  by  them.  The  latter 
function,  however,  is  one  which  is  not  suitable  for  exercise 
by  a  legislative  body,  and  it  has  been  generally  recognized 
as  belonging  to  the  Executive,  although  Congress  has  from 
time  to  time  attempted  to  encroach  upon  this  sphere  of 
executive  power.^ 

The  special  instructions  given  to  regular  diplomatic  offi- 
cers or  to  commissioners  sent  on  special  diplomatic  mis- 
sions, e,g,,  to  participate  in  an  international  conference  or 
to  negotiate  a  treaty,  are  formulated  and  signed  by  the 
President  or  the  Secretary  of  State,  and  such  officers  and 
agents  report  to  the  authority  from  whom  they  receive  their 
instructions.^  The  President  may,  on  his  own  initiative  or 
on  request,  transmit  to  Congress  or  to  the  Senate  the 
special  instructions  which  he  proposes  to  give  to  particular 

*  Closely  connected  with  the  power  of  giving  special  instructions  ia  the 
power  of  censuring  diplomatic  representatives  for  conduct  while  in  office.  In 
1896  the  House  committee  on  foreign  affairs  recommended  the  passage  of  a 
resolution  condemning  and  censuring  Ambassador  Bayard  at  London  for  utter- 
ances contained  in  speeches  made  by  him  in  England.  The  minority  report  of 
the  committee,  however,  signed,  among  others,  by  H,  St.  G.  Tucker,  condemned 
the  proposed  action  of  the  committee  as  ''unwarranted  and  unprecedented." 
"Representatives  of  the  United  States  in  foreign  countries,"  it  declared, 
"are  properly  and  exclusively,  as  to  the  regulation  of  the  propriety  or  dis- 
creetness of  their  conduct,  under  the  direction  and  control  of  the  executive 
department  of  the  Government,  and  any  interference  by  Congress  in  this  respect 
can  have  only  the  effect  of  detracting  from  the  dignity  and  usefulness  of  our 
foreign  service."  House  rept.,  520,  54th  Cong.,  1st  sess.,  pt.  2.  For  copies 
of  Bayard's  speeches,  see  House  doc.  152,  54th  Cong.,  Ist  sess. 

'See  "Report  of  the  Delegates  of  the  United  States  to  the  Third  Inter- 
national Conference  of  the  American  States, ' '  1906,  p.  39,  for  their  instructions, 
signed  by  the  Secretary  of  State.  In  the  case  of  the  Second  International 
Conference  of  American  States,  1901,  the  instructions  of  our  delegates  were 
signed  by  the  President  {ibid.,  pp.  45-49).  For  the  instructions  and  report  of 
the  American  delegates  to  the  first  and  second  Hague  Conferences,  see  For. 
Rels.  of  U.  S.,  1899,  pp.  511,  513;    ihid.,  1907,  pt.  2,  pp.  1128,  1144. 


DIPLOMATIC  INTERCOURSE:  PROCEDURE  89 

diplomatic  representatives.  Thus,  in  1792  President  Wash- 
ington submitted  to  the  Senate  for  its  approval  the 
instructions  in  conformity  with  which  he  proposed  that  the 
commissioners  appointed  to  negotiate  a  treaty  with  Spain 
should  act.  The  instructions  were  approved  by  the  Senate 
and  were  acted  upon  by  the  commissioners.*  This  action 
of  the  first  President,  however,  was  not  considered  a  bind- 
ing precedent  either  by  himself  or  by  subsequent  Presi- 
dents. In  the  case  of  the  mission  of  Jay  to  negotiate  a 
treaty  with  Great  Britain,  President  Washington  failed  to 
send  his  instructions  to  the  Senate,  and  this  gave  rise  to 
the  introduction  in  that  body  of  a  resolution  requesting  him 
to  do  so.  But  the  resolution  was  defeated.^  Even  if  it  had 
passed,  it  would  admittedly  have  been  a  mere  request,  which 
the  President  need  not  have  heeded.  President  Polk,  in 
refusing  the  request  embodied  in  a  resolution  of  the  House 
of  Eepresentatives  that  he  communicate,  if  not  inconsistent 
with  the  public  interests,  copies  of  instructions  given  to 
the  commissioners  appointed  to  conduct  treaty  negotiations 
with  Mexico,  said:  **I  avail  myself  of  this  occasion  to  ob- 
serve that,  as  a  general  rule  applicable  to  all  our  important 
negotiations  with  foreign  powers,  it  could  not  fail  to  be 
prejudicial  to  the  public  interest  to  publish  the  instructions 
to  our  ministers  until  some  time  had  elapsed  after  the  con- 
clusion of  such  negotiations. ' '  ^ 

In  1798  the  House  of  Representatives  considered  a  reso- 
lution requesting  the  President  to  communicate  to  it  the 
instructions  to  and  dispatches  from  the  envoys  extraor- 
dinary to  France,  known  as  the  * *X  Y  Z"  mission.*    A  pro- 

*  Senate  Exec.  Jour.,  I,  106,  115;  Crandall,  Treaties:  Their  Mdkmg  and 
Enforcement,  69. 

'  Exec.  Jour.,  I,  151 ;  Crandall,  op.  cit.,  70. 

•Richardson,  Messages  and  Papers  of  the  Presidents,  IV,  602;  Hindi, 
Precedents,  II,  988.  President  Polk  had  previously  declined  fully  to  comj^ly 
with  an  unconditional  request  of  the  House  of  Representatives,  contained  in 
a  resolution  of  January  4,  1848,  for  a  copy  of  the  instructions  issued  to  our 
minister  to  Mexico.  Richardson,  op.  cit.,  IV,  565-7;  Hinds,  Precedents,  II, 
986-7. 

*  Annals  of  Cong.,  5th  Cong.,  cols.  1370,  1371. 


I 


90  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

posed  amendment  to  add  the  words:  **or  such  parts  thereof 
as  considerations  of  public  safety  and  interest,  in  his 
opinion,  may  permit'^  was  defeated.  In  the  debate  several 
members  expressed  doubt  as  to  the  propriety  and  constitu- 
tionality of  the  call  as  far  as  it  related  to  instructions  given 
to  our  ministers.^  The  resolution  was  nevertheless  passed 
by  a  vote  of  more  than  two  to  one,  and  tl^  instructions, 
with  slight  reservations,  were  transmitted  ^  the  House  J^ 
the  President.^  Again,  during  the  Senate  *s  consideration 
of  the  treaty  of  peace  with  Spain  a  resolution  was  passed, 
in  1899,  requesting  the  President,  so  far  as  in  his  judgment 
was  not  inconsistent  with  the  public  interest,  to  communi- 
cate to  the  Senate  all  instructions  given  by  him  to  the 
commissioners  who  negotiated  the  treaty.  President  Mc- 
Kinley  complied  with  this  request  by  transmitting  the 
original  instructions.^  In  neither  of  these  cases,  however, 
was  the  President  legally  bound  to  respond.  He  did  so  only 
through  practical  considerations  of  policy  and  expediency, 
or  through  a  desire  to  act  in  a  spirit  of  comity  with  the 
legislative  branch. 

Congressional  requests  for  diplomatic  instructions  after 
they  have  been  given  and  acted  upon  is  a  less  serious  inter- 
ference with  executive  power  than  an  attempt  by  Congress, 
or  either  branch  thereof,  to  dictate  to  the  President  or  to 
participate  with  him  in  the  giving  of  such  instructions,  or 
to  give  them  directly.  In  connection  with  the  request  of 
President  J.  Q.  Adams  that  Congress  appropriate  the  neces- 
sary funds  to  enable  him  to  send  ministers  to  the  Panama 
Congress  of  1826,  the  House  of  Representatives  considered 
a  proposition  expressing  the  sense  of  that  body  as  to  what 
the  ministers  ought  and  ought  not  to  do.  In  defense  of  this 
proposition  it  was  argued  that  the  power  of  the  House  to 
appropriate  for  the  expenses  of  the  mission  carried  with  it 

*  See  remarks  of  Mr.  Bayard,  Annals  of  Cong.,  5th  Cong.,  col.  1359,  and  of 
Mr.  Hartley,  ibid.,  col.  1369. 
'  Bichardson,  op.  cit.,  I,  265. 
•Senate  doe.  148,  56th  Cong.,  2nd  sess.,  pp.  3-8. 


DIPLOMATIC  INTERCOURSE:  PROCEDURE  91 

the  right  to  impose  conditions.  Opposition,  however,  was 
led  by  Daniel  Webster,  who  argued  that  the  House  had  no 
right  to  decide  what  should  be  discussed  by  particular  min- 
isters, and  that,  if  such  instructions  might  be  given  by  the 
House  in  this  case,  they  might  be  given  in  all  cases,  thus 
usurping  the  prerogative  of  the  Executive.^  It  was  also 
pointed  out,  in  the  course  of  debate,  that  the  House  proposi- 
tion was  an  attempted  infringement  upon  the  treaty-making 
power.  Attention  was  called,  too,  to  the  confusion  which 
would  result  if  the  House  and  Senate  separately  undertook 
to  give  instructions  which  turned  out  to  be  incompatible. 
The  proposition  was  eventually  defeated. ^ 

In  this  matter,  as  in  other  phases  of  our  foreign  relations, 
the  power  of  Congress  to  appropriate  necessary  funds  for 
foreign  missions  may  indirectly  operate  to  give  some  prac- 
tical influence  over  the  determination  of  the  instructions 
of  our  commissioners,  and  any  expression  of  opinion  by 
Congress  is  entitled  to  weight  and  due  respect,  as  that  of 
representatives  of  the  people  from  whom  all  authority  is 
ultimately  derived.  This  is  especially  true  of  the  Senate 
when  the  commissioners  are  appointed  to  negotiate  a  treaty 
which  must  subsequently  be  submitted  to  that  body  for 
approval.  The  President,  however,  is  recognized  as  having 
control  over  the  negotiation  of  treaties,  and  may  appoint 
for  their  negotiation  special  agents  who  act  solely  under 
his  direction.    Neither  Congress  nor  either  branch  thereof 

*  Benton,  Abridgment  of  Debates,  IX,  94-95.  Webster  also  declared  that 
the  appropriation  power  of  the  House  did  not  enable  it  to  give  any  gifts  of  its 
own,  since  it  was  rather  the  steward  over  a  trust  fund. 

^  Benton,  Abridgment,  IX,  217.  The  proposition  carried,  however,  in  com- 
mittee of  the  whole  by  a  vote  of  99  to  95  (ibid.).  For  summary  of  the 
debate,  see  Hinds,  Precedents,  II,  1015-1018.  In  1912  the  House  committee  on 
foreign  affairs  reported  favorably  a  joint  resolution  authorizing  the  President 
to  instruct  the  delegates  of  the  United  States  to  the  next  Hague  Conference 
and  to  the  next  Pan-American  Conference  to  express  the  desire  of  the  United 
States  that  the  nations  represented  should  guarantee  their  territorial  boundaries 
and  not  seek  to  increase  the  same  by  conquest.  House  rept.  705,  62nd  Cong., 
2nd  sess.  In  the  previous  year  this  committee  reported  favorably  a  joint 
resolution  to  instruct  the  delegates  of  the  United  States  to  the  Third  Hague 
Conference.  House  rept.  2216,  61st  Cong.,  3rd  sess.  Neither  of  these  resolu- 
tions, however,  was  adopted. 


92  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

can  legally  control  the  President's  discretion  in  instructing 
these  agents.  The  President  exercises  not  only  legal  con- 
trol but  predominating  practical  influence,  both  through  his 
power  to  negotiate  treaties  and  through  his  power  to 
appoint  and  remove  diplomatic  officers  and  agents.^ 


RECEPTION  OF  DIPLOMATIC  ENVOYS 

As  indicated  above,  the  Constitution  vests  the  power  of 
receiving  ^* ambassadors  and  other  public  ministers''  in 
the  President.  This  phrase,  as  Attorney-General  Gushing 
pointed  out,  embraces  ^^all  possible  diplomatic  agents  which 
any  foreign  power  may  accredit  to  the  United  States."^ 
Although  consuls  are  not  mentioned  by  the  Constitution  in 
this  connection,  it  is  established  in  practice  that  they  must 
be  recognized  by  exequatur  of  the  President  before  enter- 
ing upon  their  duties.  Moreover,  this  power  of  the  Presi- 
dent with  regard  to  all  classes  of  foreign  diplomatic  and 
consular  agents  is  exclusive;  for  the  President,  as  we  have 
seen,  is  the  sole  organ  of  communication  with  foreign 
states.^  It  was  apparently  expected  by  the  framers  of  the 
Constitution  that  this  function  would  be  purely  ceremonial. 
In  reality,  however,  as  will  be  shown,  it  has  become  an  im- 

*  Cf .  the  remarks  of  Senator  Spooner,  already  quoted :  *  *  He  [the  President] 
may  issue  to  the  agent  chosen  by  him — and  neither  Congress  nor  the  Senate  has 
any  concern  as  to  whom  he  chooses — such  instructions  as  seem  to  him  wise. 
He  may  vary  them  from  day  to  day.  That  is  his  concern.  The  Senate  has  no 
right  to  demand  that  he  shall  unfold  to  the  world  or  to  it,  even  in  executive 
session,  his  instructions  or  the  prospect  or  progress  of  the  negotiation." 
Supra,  p.  71  n.  In  this  connection  it  may  be  mentioned  that  President 
McKinley  changed  by  cable  the  original  instructions  of  the  United  States 
commissioners  at  the  Paris  peace  conference  of  1898. 

'  7  Op.  U.  S.  Atty.-Gen.,  209. 

'See  note  of  Secretary  J.  Q.  Adams  in  1818  in  which,  with  reference  to  a 
communication  from  the  Swedish  Government  addressed  to  the  ''President 
and  Senate  of  the  United  States,"  he  took  occasion  to  point  out  that  all 
ceremonial  communications  from  foreign  governments  should  be  addressed  to 
the  President  alone,  and  declared  that  ''the  authority  to  receive  foreign 
ministers  is  vested  exclusively  in  the  President. ' '  Moore 's  Digest  of  Internat. 
Law,  IV,  462.  This  did  not  mean,  however,  that  ordinary  communications 
might  not  be  addressed  to  the  Secretary  of  State. 


DIPLOMATIC  INTERCOURSE:  PROCEDURE  93 

portant  factor  in  enabling  the  President  to  exercise  the 
power  of  recognizing  foreign  governments. 

TERMINATION  OF  DIPLOMATIC  MISSIONS 

About  a  dozen  different  ways  in  which  diplomatic  mis- 
sions may  terminate  are  usually  enumerated  in  works  on 
international  law.^  The  most  important  are  the  recall  and 
the  dismissal.  The  recall  is  used  by  our  Government  in 
the  case  of  our  own  diplomatic  officers  accredited  to  a  for- 
eign government,  while  dismissal  is  applied  to  a  represen- 
tative of  a  foreign  government  accredited  to  us.  A  recall 
may  be  brought  about  on  the  initiative  of  our  Government, 
or  it  may  be  brought  about  at  the  request  of  the  foreign 
government  to  which  the  diplomat  is  accredited.  Changes 
in  the  diplomatic  service  of  the  United  States  usually  take 
place  concurrently  with  a  change  of  administration  at -^ 
Washington,  even  though  there  has  been  no  change  of  party 
control  in  Congress.  When  a  new  administration  comes  in, 
our  diplomatic  representatives  abroad  customarily  submit  ^ 
their  resignations  to  the  President.  The  power  of  the 
President  to  recall  diplomatic  representatives  is  merely 
one  phase  of  his  general  power,  now  well-established,  of 
removing  all  officers  of  government  who  are  appointed  by 
him,  whether  alone  or  with  the  advice  and  consent  of  the 
Senate.^  According  to  the  Printed  Instructions  issued  by 
the  State  Department,  *  ^  A  recall  is  usually  accomplished  at 
the  pleasure  of  the  President,  during  a  session  of  the  Sen- 
ate, by  sending  to  that  body  the  nomination  of  the  officer's 
successor.  Upon  the  confirmation  and  commission  of  his 
successor,  the  original  incumbent's  office  ceases.''^    The  • 

^See,  e.g.,  Oppenheim,  International  Law,  I,  476  ff.;  Foster,  Fractice  of 
Diplomacy,  Chap.  IX. 

"  Parsons  v.  IJnited  States,  167  U.  S.,  324.  Congress,  however,  may-  reg- 
ulate removals  in  the  case  of  inferior  officers  whose  appointment  it  has  vested 
in  heads  of  departments.     United  States  v.  Perkins,  116  U.  S.,  483. 

"'Instructions  to  Diplomatic  Officers  of  the  United  States,"  quoted  in 
Moore,  Digest  of  Internat.  Law,  IV,  470. 


94  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

President,  however,  may  recall  a  diplomatic  officer  without 
appointing  a  successor,  and  thus  allow  the  post  to  remain 
vacant. 

The  question  may  be  raised  whether  Congress,  as  well 
as  the  President,  has  not  power  to  remove  diplomatic  rep- 
resentatives from  office.  This  it  undoubtedly  has,  through 
the  process  of  impeachment.  This  method  of  removal,  how- 
ever, is  so  cumbersome  as  to  be,  for  practical  purposes, 
almost  entirely  ineffective  as  a  means  of  control.  In  1855 
Congress  passed  an  act  requiring  consuls  to  account  for 
the  fees  -collected  by  them,  ^*  under  penalty  of  being  removed 
from  office.'*  Attorney-General  Cushing  held  this  penal 
clause  to  be  inexecutable  and  of  dubious  legality.  ^^Does 
the  act,'*  he  asked,  ^^mean  to  dictate  to  the  President  when 
to  remove  a  public  officer?  That  cannot  be.  The  power  of 
removal,  and  the  absolute  right  to  exercise  it  according  to 
his  conscience,  like  the  power  of  appointment,  he  holds  by 
the  Constitution.  *  *  ^ 

Foreign  diplomatic  representatives  accredited  to  our 
Government  cannot  be  reached  by  Congress,  even  by  im- 
peachment, and  their  right  to  continue  to  act  is  dependent 
upon  the  pleasure  of  the  President.  The  right  of  the  Presi- 
dent to  dismiss  the  representatives  of  foreign  nations  at 
our  capital  may  be  implied,  not  only  from  his  general  con- 
trol of  foreign  affairs,  but  also  from  the  power  granted  him 
by  the  Constitution  to  receive  ambassadars  and  other  pub- 
lic ministers.  This  is  a  power  which,  it  is  recognized,  should 
be  exercised  by  the  President  only  under  great  provoca- 
tion, since  a  request  directed  to  the  foreign  government  to 
recall  the  obnoxious  minister  is  usually  equally  effective. 
Nevertheless  it  has  been  exercised  by  the  President  on 
several  occasions,  one  of  the  most  famous  being  that  on 
which  Lord  Sackville-West,  the  British  minister,  having 
been  guilty  of  an  indiscretion,  was  handed  his  passports  in 

» 7  Op.  Atty.-Gen.,  251. 


DIPLOMATIC  INTERCOURSE :  PROCEDURE  95 

1888,  by  Secretary  Bayard.^  In  1917  Count  Bemstorff,  the 
German  ambassador,  being  implicated  in  plots  against  our 
peace  and  safety,  was  handed  his  passports  by  the  Secre- 
tary of  State,  by  direction  of  the  President.^ 

The  power  of  severing  diplomatic  relations  with  a  foreign 
government,  whether  through  recall  or  dismissal,  is  of  great 
importance.  Its  use  is  likely  to  make  more  difficult  the 
maintenance  of  friendly  relations  between  the  two  countries 
in  question,  and  may  be  the  preliminary  step  to  war.  But, 
although  the  exercise  of  the  power  involves  grave  responsi- 
bility, it  rests  with  the  President  alone.  In  February,  1917, 
President  Wilson  severed  diplomatic  relations  with  Ger- 
many on  his  own  responsibility  and  without  consulting  Con- 
gress, merely  announcing  to  that  body  the  fact  that  he  had 
done  so.^    Two  months  later  Congress  declared  war. 

THE  COUBTS  AND  DIPLOMATIC  ENVOYS 

Under  the  Constitution,  the  Supreme  Court  has  original 
jurisdiction  in  all  cases  affecting  ambassadors  and  other 
public  ministers  and  consuls.  Foreign  ambassadors  and 
ministers  are  entitled  to  extensive  diplomatic  immunities, 
and  on  that  account  are  not  subject  to  suit  or  prosecution 
in  our  courts,  although  they  may  bring  such  suits  therein 
against  private  citizens.  Whether  a  person  claiming  to  be 
a  foreign  diplomatic  envoy  is  really  such,  is  for  the  Presi- 
dent to  decide.  His  recognition  as  an  envoy  by  the  Presi- 
dent is  conclusive  upon  the  judiciary.* 

*  The  President  may  also  dismiss  consuls  by  revoking  their  exequaturs.  For 
examples  of  presidential  proclamations  revoking  exequaturs  of  foreign  consuls, 
see  Richardson,  Mes».  and  Pap.  of  the  Presidents,  VI,  219,  511,  512.  Cf. 
Coppell  V.  Hall,  7  Wall.,  542,  553 ;  Moore 's  Digest  of  Intemat.  Law,  V,  19  ff. 

*In  1915  our  Government  requested  and  secured  the  recall  of  Dr.  Dumba, 
the  Austro -Hungarian  ambassador. 

'Address  at  joint  session  of  Congress,  Feb.  3,  1917.  On  April  19,  1916, 
however,  the  President  had  appeared  before  Congress  and  informed  it  of  his 
warning  to  Germany  that  unless  she  immediately  abandoned  her  methods  of 
submarine  warfare  our  Government  would  be  forced  to  sever  diplomatic  rela- 
tions with  her  altogether. 

*In  re  Baiz,  135  U.  S.,  403:  United  States  v.  Ortega,  Fed.  Cas.  No.  15,971 
(1825). 


96  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

REFERENCES 

Corwin,  E.  S.,  The  Presidents  Control  of  Foreign  Relations  (Princeton, 

1917),  46-70. 
Foster,  J.  W.,  Practice  of  Diplomacy  (Boston,  1906),  Chaps.  II-IV,  IX- 

Hershey,  A.  S.,  Diplomatic  Agents  and  Immunities  (Washington,  1919), 

13-18;  24-33;  40-44. 
Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  IV,  427- 

553. 
Opinions  of  the  Attorney-General  of  the  United  States,  VII,  189-229; 

243-277  (1855). 
PauUin,  C.  0.,  Diplomatic  Negotiations  of  American  Naval  Officers,  1778- 

1883  (Baltimore,  1912). 
Wriston,  H.  M.,  "Presidential  Special  Agents  in  Diplomacy,"  Am,  Pol. 

Set.  Rev.,  X,  481-499  (Aug.,  1916). 


CHAPTER  VI 

THE  CONSULAR  SERVICE 

WHEN  the  United  States  became  an  independent 
nation  it  inherited  the  principles  governing  the  dip- 
lomatic and  consular  systems  then  existing  in  the  Old 
World.  The  rights  and  privileges  of  our  consuls  abroad 
are  therefore  derived  in  part  from  international  usage. 
Their  position  is  also  regulated  by  treaties  and  by  statutes 
and  ordinances  of  our  domestic  authorities.  They  are 
stationed  in  important  political  and  commercial  places 
throughout  the  world ;  and,  unlike  the  members  of  the  dip- 
lomatic service,  they  have  dealings  mainly  with  the  local 
authorities  rather  than  with  the  central  governments.        \l 

HISTOBICAL  DEVELOPMENT 

At  first,  the  United  States  had  no  consular  service 
separate  from  the  diplomatic  service;  the  same  officers 
performed  both  diplomatic  and  consular  functions,  repro- 
ducing, in  this  respect,  the  history  of  the  consular  systems 
of  Europe.  This  lack  of  differentiation  between  the  two 
services  produced  inconveniences,  even  at  a  time  when 
our  foreign  commerce  was  comparatively  small,  and  as  the 
importance  of  our  foreign  relations  increased,  it  became 
more  obvious  that  a  separate  consular  service  would  have 
to  be  established,  in  order  that  special  attention  might  be 
paid  to  consular  functions,  as  well  as  to  relieve  officers 
whose  duties  wea-e  primarily  diplomatic  from  the  distrac- 
tions of  consular  responsibilities. 

The  framers  of  the  Constitution  expre&sly  recognized  in 

97 


98  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

that  instrument  the  distinct  status  of  consuls.  It  was  pro- 
vided that  consuls  should  be  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate.  It  was 
also  stipulated  ^:hat  the  judicial  power  of  the  United  States 
should  extend  to  all  cases  affecting  consuls.  The  Supreme 
Court  was  given  original,  but  not  exclusive,  jurisdiction 
in  such  cases;  hence  suits  against  foreign  consuls  may  be 
brought  in  the  lower  Federal  courts.  These  provisions 
have  the  effect  of  excluding  the  state  courts  from  jurisdic- 
tion in  cases  affecting  consuls,  unless  these  officials  volun- 
tarily bring  suits  in  such  courts. 

The  first  act  of  Congress  relating  to  the  consular  service 
after  the  adoption  of  the  Constitution  was  delayed  until 
1792.  Meanwhile,  however,  President  Washington,  recog- 
nizing the  need  of  creating  an  independent  consular  service, 
appointed  some  sixteen  consular  officers  under  his  consti- 
tutional authority  and  without  waiting  for  any  special 
Congressional  authorization.  Inasmuch  as  these  officers 
received  no  compensation  out  of  the  treasury  of  the  United 
States,  it  was  not  necessary  for  Congress  to  make  an  appro- 
priation for  this  purpose.  The  provisions  of  the  act  of 
1792  indicated  that,  in  the  mind  of  Congress,  the  object  of 
the  consular  service  at  that  time  was  not  so  much  to  pro- 
mote and  extend  American  commerce  as  to  afford  protec- 
tion to  American  merchants  and  sailors  and  to  administer 
the  estates  of  American  citizens  dying  abroad  without  legal 
representatives  on  the  spot.  Both  the  provisions  and  the 
omissions  of  the  act  of  1792  give  evidence  of  the  crudity 
and  undeveloped  condition  of  the  consular  service  at  that 
time.  Thus,  no  qualifications  were  required  for  entrance 
into  the  service.  Foreigners  might  be  employed,  and  this 
was  sometimes  done  in  places  where  it  was  impracticable 
to  induce  Americans  to  accept  appointment.  Consuls  might, 
and  not  infrequently  did,  engage  in  trade  of  a  private 
nature,  so  that  they  did  not  give  their  undivided  attention 
to  their  public  duties.    Except  in  the  Barbary  states^  con- 


THE  CONSULAR  SERVICE  99 

suls  received  no  salaries,  but  derived  their  compensation 
from  fees,  whose  amount  varied  considerably  from  place 
to  place,  according  to  the  volume  of  business  transacted. 
No  accurate  account  of  these  fees  was  kept  at  Washington. 

In  1833  Secretary  Livingston,  after  investigation,  made 
a  report  recommending  that  the  service  should  be  reformed 
by  prohibiting  consuls  from  engaging  in  private  business, 
by  substituting  salaries  for  the  fee  system,  and  by  estab- 
lishing a  more  precise  definition  of  consular  powers  and 
duties.  Congress,  however,  failed  to  adopt  these  sugges- 
tions until  many  years  later.  After  passing,  in  1855,  an 
abortive  act,  some  of  whose  provisions  were,  in  the  opinion 
of  Attorney-General  Gushing,  unconstitutional,  Congress 
enacted  in  the  following  year'an  important  law  carrying  out 
to  some  extent  Livingston's  recommendations.  This  meas- 
ure more  exactly  defined  certain  of  the  powers  and  duties 
of  consuls,  and  the  President  was  given  authority  to  sup- 
plement the  law  in  this  respect  by  issuing  regulations  hav- 
ing the  force  of  law.  Consulates  were  divided  into  three 
classes,  in  the  order  of  their  importance.  Consuls  in  the 
first  class  were  put  upon  a  salary  basis  and  were  prohibited 
from  engaging  in  private  trade.  Those  in  the  second  class 
also  received  salaries,  but  might  engage  in  trade,.  The 
third  class  remained  on  the  fee  basis,  and  an  attempt  was 
made  to  secure  from  members  of  this  class  an  accounting 
of  the  amount  of  fees  collected;  but  no  adequate  means 
were  inserted  in  the  act  for  the  enforcement  of  this  pro- 
vision. Non-trading  consuls  were  given  an  extra  allowance 
of  ten  per  cent,  of  their  respective  salaries  for  office  rent, 
which  was  afterwards  increased  to  twenty  per  cent.  But 
even  the  larger  amount  proved  inadequate. 

Another  interesting  feature  of  the  law  of  1856  was  the 
authority  granted  the  President  to  appoint  a  number  of 
consular  ^* pupils,''  or  clerks,  at  a  salary  of  $1,000;  though 
'Congress  failed  to  make  an  appropriation  for  them  until 


100  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

1864.^  They  were  to  enjoy  comparatively  secure  tenure, 
and  it  was  intended  that,  when  they  had  received  training 
in  these  subordinate  positions,  they  would  be  promoted  to 
the  higher  ranks.  The  provision  has  not  been  successful 
in  accomplishing  this  object,  but  it  marks  the  first  attempt 
by  law  to  put  any  branch  of  the  consular  service  on  a  perma- 
nent basis,  protected  from  the  raids  of  spoils  politicians 
to  which  the  service  had  been  subject.  A  further  extension 
of  this  idea  was  made  by  President  Cleveland  through  an 
executive  order  of  1895  providing  that  vacancies  in  the 
lower  grades  of  consuls  should  be  filled  either  by  transfer 
from  the  Department  of  State  or  by  appointment  from 
among  persons  who  had  been  designated  by  the  President 
and  had  passed  an  examination  set  by  a  board  of  three 
persons  appointed  by  the  secretary  of  state.  The  greatest 
step  in  this  direction,  however,  was  taken  in  an  executive 
order  of  President  Roosevelt,  issued  in  1906,  which  followed 
an  act  of  Congress  of  the  same  year  reorganizing  the  serv- 
ice. These  important  measures  toward  a  more  permanent 
consular  service  were  taken  as  the  result,  in  part,  of  a  more 
general  appreciation  of  the  value  and  importance  of  the 
consular  service,  especially  in  connection  with  the  promo- 
tion of  commerce.  Since  the  Spanish  War  the  functions 
of  consuls  in  this  respect  have  become  far  more  important 
than  before,  on  account  of  our  increasing  influence  and  re- 
sponsibilities abroad,  our  more  numerous  contacts  with 
other  nations,  and  the  great  expansion  of  our  international 
trade. 

GRADES  OF  CONSULAR  OFFICERS 

At  first,  there  was  little  or  no  official  gradation  in  the 
consular  service,  but  gradually  distinctions  of  rank  have 
developed.     Although  the  term  consul  may  be  used  ge- 

*  The  salaries  of  consular  clerks,  or  assistants,  as  they  are  now  called,  were 
raised  by  act  of  1918  to  $1,500  for  the  first  year  and  up  to  $2,000  for  the 
fourth  year  of  continuous  service. 


THE  CONSUL AB,  SfiRVirfB  *• .  - '  ''*  •  101 

nerically  to  embrace  all  consular  officers,  it  is  also  used  as 
the  designation  of  one  of  the  particular  grades.  The  vari- 
ous grades  of  consuls  may  be  divided  into  three  groups: 
principal,  subordinate,  and  special.  The  principal  consular 
officers  are  consuls  and  consuls-general.  The  latter  grade 
was  created  because  it  was  found  that,  in  certain  Oriental 
countries,  a  mere  consul  was  at  a  disadvantage  in  obtaining 
interviews  and  concessions.  Consuls-general  of  the  United 
States,  however,  are  now  found  in  most  of  the  principal 
countries,  and  they  exercise  a  limited  supervision  over 
the  consuls  in  the  respective  countries  in  which  they  are 
stationed.  In  a  few  instances  they  also  have  functions  of 
a  diplomatic  nature.  Otherwise,  their  powers  and  duties 
are  practically  the  same  as  those  of  consuls.  The  President 
is  authorized  by  law  to  define  the  extent  of  territory  to  be 
embraced  within  any  consular  district,  and  this  usually 
includes  all  places  nearer  to  a  particular  consul  than  to  any 
other. 

A  special  grade  of  consular  officer  is  that  of  consul- 
general  at  large,  or  inspector  of  consulates,  which  was 
created  by  the  act  of  1906.  Seven  of  these  officers  are  now 
provided  for.  They  are  appointed  only  from  members  of 
the  consular  force  having  the  requisite  qualifications  of 
experience  and  ability.^  Their  duty  consists  in  visiting  and 
inspecting  each  consulate  and  consulate-general  at  least 
once  every  two  years;  and  if  they  find  that  any  of  these 
offices  are  not  properly  conducted,  they  may  be  authorized 
by  the  President  to  suspend  the  principal  officer  and  to 
administer  the  office  for  a  period  of  ninety  days.  During 
such  period  they  may  also  suspend,  for  proper  cause,  any 
subordinate  officers  or  clerks  attached  to  such  office.  In 
the  group  of  special  consular  officers  may  also  be  mentioned 
consuls  who  are  assigned  to  serve  as  assistants  to  consuls- 
general  in  economic  investigational  work. 

*  Consuls-general  at  large  receive  the  inadequate  salary  of  $5,000  and  travel- 
ing and  subsistence  expenses. 


102  THE  CONDUCT.  OF  AMERICAN  FOREIGN  RELATIONS 

Subordinate  consular  officers  and  grades  include  vice- 
consuls,  consular  assistants  or  clerks,  and  consular  agents.^ 
In  certain  Oriental  countries  there  are  also  interpreters  and 
marshals.  Vice-consuls  perform  consular  duties  subor- 
dinate to  consuls  and  consuls-general  within  the  limits  of 
the  consulate,  and  may  also  act  as  substitute  officers  when 
the  principal  consular  officers  are  temporarily  absent  from 
their  posts.  The  same  person  sometimes  acts  both  as  vice- 
consul  and  as  consular  assistant.  There  are  two  grades  of 
vice-consuls :  those  de  carriere  and  those  not  of  career.  The 
former  are  appointed  by  promotion  from  the  lower  ranks 
or  grades,  or  from  candidates  who  have  passed  an  examina- 
tion, while  the  latter  are  appointed  without  examination. 
Vice-consuls  not  of  career,  however,  may  not  be  promoted 
to  the  grade  of  vice-consul  de  carriere  without  undergoing 
the  usual  examination.  Consular  agents  are  officers  subor- 
dinate to  a  consul  or  consul-general.  They  exercise  limited 
consular  functions  at  places  different  from  those  at  which 
their  principals  are  located.  They  are  permitted  to  engage 
in  private  business,  and  are  usually  local  merchants.  They 
are  allowed  compensation  of  not  more  than  $1,000  a  year, 
which  is  paid  from  one-half  of  the  fees  they  collect.  Con- 
sular officers  are  required  to  account  to  the  Department  of 
State  for  all  fees  received.  All  grades  of  consular  officers, 
with  the  exception  of  consular  agents,  are  paid  a  salary 
fixed  by  law,  and  fees  which  come  to  them  must  be  turned 
into  the  treasury  of  the  United  States.  All  persons  in  the 
consular  service  receiving  a  salary  of  $1,000  or  more  are 
required  by  law  to  be  American  citizens,  and  are  prohibited 
from  engaging  in  private  trade. 

Supervision  and  direction  over  the  consular  service  is 
maintained  by  the  Department  of  State,  in  which,  as  we 
have  seen,  a  consular  bureau  has  been  created.  Instruc- 
tions and  regulations  are  issued  from  time  to  time  to  con- 

*The  offices  of  vice-consul-general,  deputy-consul-general,  and  deputy-consul 
and  the  grade  of  commercial  agent  have  now  been  abolished. 


THE  CONSULAR  SERVICE  103 

sular  officers.  The  consuls-general  at  large,  when  traveling 
on  inspection  trips,  act  under  the  instructions  of  the 
Secretary  of  State.  Careful  watch  is  maintained  in  Wash- 
ington over  the  manner  in  which  the  various  consular 
officers  handle  their  official  business,  and  a  detailed  efficiency- 
record  of  the  work  of  each  of  them  is  kept  in  the  Depart- 
ment. 


APPOINTMENT,  PROMOTION,  AND  REMOVAL 

As  already  noted,  the  Constitution  provides  that  the 
President  shall  nominate,  and  by  and  with  the  advice  and 
consent  of  the  Senate,  shall  appoint  consuls,  but  also  that 
Congress  may  by  law  vest  the  appointment  of  inferior 
officers  in  the  President  alone  or  in  the  heads  of  depart- 
ments. Consuls,  consuls-general,  and  consuls-general  at 
large  are  appointed  by  the  President  and  Senate.  Vice- 
consuls  and  consular  agents  are  appointed  by  the  Secretary 
of  State,  usually  upon  the  nomination  of  the  principal  con- 
sular officer.  The  President,  acting  alone,  is  authorized  by 
law  to  appoint  consular  assistants  or  clerks.  Formerly  all 
appointments  were  to  particular  posts ;  transfers  were  not 
permissible ;  and  if  a  consul  was  forced  by  war  or  unsettled 
conditions  to  abandon  his  post,  his  salary  ceased.  As  a 
result  of  conditions  which  arose  in  important  commercial 
centers  during  the  early  stages  of  the  World  War,  the  dis- 
advantages of  this  inflexibility  of  the  service  were  accentu- 
ated and,  in  order  to  relieve  the  situation.  Congress  passed, 
in  1915,  a  law  prescribing  that  consuls  and  consuls-general 
shall  be  appointed  to  grades  and  not  to  posts.  It  was  also 
provided  that  transfers  might  be  made  from  post  to  post 
within  the  grade  by  executive  order.  The  consent  of  the 
Senate  is  not  required  except  for  promotions  and  new 
appointments.  The  operation  of  this  law  has  resulted  in 
greater  mobility  and  elasticity  in  the  service,  enabling  the 
State  Department  better  to  adjust  the  personnel  of  the  serv- 


104  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ice   to   changing   conditions,   notably   in   Europe   and   in 
Mexico. 

The  act  of  Congress  passed  in  1906  for  the  reorganiza- 
tion of  the  service  divided  the  grades  of  consul  and  consul- 
general  into  a  number  of  classes  according  to  salary.  The 
act  was  defective,  however,  in  that  it  failed  to  make  any 
provision  for  the  merit  system  in  appointments.  Accord- 
ingly, President  Roosevelt,  in  the  same  year,  acting  by 
virtue  of  the  law  of  1883  authorizing  the  Chief  Executive 
to  cover  civil  servants  of  the  United  States  into  the  classi- 
fied service,  issued  an  executive  order  which,  as  amended 
and  supplemented  by  later  act,  regulations,  and  executive 
orders,  provides  in  substance  that  vacancies  in  the  offices 
of  consul-general  and  the  higher  classes  of  consuls  shall  be 
filled  by  promotion  on  the  basis  of  efficiency  from  the  lower 
grades  of  the  consular  service  or  by  transfer  from  the  De- 
partment of  State.  Vacancies  in  the  two  lowest  classes  of 
consuls  are  to  be  filled  either  by  promotion  on  the  basis 
of  ability  and  efficiency  from  the  ranks  of  vice-consuls, 
consular  assistants,  and  interpreters,  or  by  new  appoint- 
ment of  candidates  who  have  satisfactorily  passed  examina- 
tions. 

Candidates  for  new  appointment  in  the  service  must  be 
between  twenty-one  and  fifty  years  of  age  and  citizens  of 
the  United  States,  and  they  must  be  specially  designated 
by  the  President  for  appointment  subject  to  examination. 
The  board  of  examiners  consists  of  the  director  of  the  con- 
sular service,  the  chief  of  the  consular  bureau,  an  officer 
of  the  Department  of  State  designated  by  the  President,  and 
an  examining  officer  from  the  United  States  Civil  Service 
Commission.  The  board  is  thus  composed  of  two  elements : 
first,  officials  of  the  department  in  which  the  consuls  ap- 
pointed are  to  serve,  and,  secondly,  an  official  of  the 
general  civil  service  examining  body.  This  arrangement 
is  designed  to  overcome  the  lack  of  understanding  and 
cooperation   which    sometimes   arises    between   the    Civil 


THE  CONSULAR  SERVICE  105 

Service  Commission  and  the  departments  to  which  members 
of  the  classified  service  are  attached.  The  examination  con- 
sists of  two  parts,  oral  and  written,  the  two  counting  equally. 
The  oral  examination  is  designed  to  ascertain  the  candi- 
date's alertness,  address,  and  personality.  The  written 
examination  is  designed  to  test  his  knowledge  of  such  sub- 
jects as  modern  foreign  language,  geography,  the  resources 
and  commerce  of  the  United  States,  political  economy,  inter- 
national, commercial,  and  maritime  law,  modern  history, 
and  American  history,  government  and  institutions.  Can- 
didates for  appointment  in  countries  in  which  the  United 
States  exercises  extraterritorial  jurisdiction  are  also 
examined  in  the  fundamental  principles  of  the  common  law, 
the  rules  of  evidence,  and  the  trial  of  civil  and  criminal 
cases.  Candidates  who  attain,  on  the  whole  examination, 
an  average  mark  of  at  least  80  are  certified  by  the  board 
as  eligible  for  appointment  and  remain  on  the  eligible  list 
for  two  years  unless  sooner  appointed. 

Both  in  designations  by  the  President  and  in  appoint- 
ments after  examination,  regard  is  had  for  the  rule  that, 
as  between  candidates  of  equal  merit,  appointments  shall 
be  so  made  as  to  secure  proportional  representation  of  all 
the  states.  Absolute  geographical  representation  is,  of 
course,  not  practicable.  Even  so  far  as  it  is  practicable,  it 
is  a  handicap  to  the  working  of  the  merit  principle.  The 
rule  has  been  called  one  of  the  penalties  which  had  to  be 
paid  in  order  to  get  the  system  established.^  The  executive 
order  of  1906  declares  that  ^*  neither  in  the  designation  for 
examination  or  certification  or  appointment  will  the  politi- 
cal affiliations  of  the  candidate  be  considered.''  Inasmuch, 
however,  as  it  is  necessary  that  presidential  nominations 
to  consulships  be  confirmed  by  the  Senate,  there  is  at  least 
a  possibility  that  political  considerations  will  be  involved  in 
the  appointments  through  the  operation  of  the  rule  of 

*W.  J.  Carr  (director  of  the  consular  service),  in  Conference  on  Training 
for  Foreign  Service,  24. 


106  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

** Senatorial  courtesy."  This  is  borne  out  by  the  state- 
ment of  the  director  of  the  consular  service  that  it  is  cus- 
tomary to  ask  a  candidate  to  place  on  file  with  the  Depart- 
ment a  letter  from  the  Senators  of  his  state,  recommending 
or  consenting  to  "his  appointment.^ 

The  merit  system  of  appointment  to  the  consular  service 
as  thus  outlined  has  not  yet  been  applied  to  its  full  extent. 
It  applies  only  to  the  lowest  grades  of  consuls.  In  the  main, 
it  rests  merely  on  executive  orders,  which  may  be  changed 
by  the  President  at  any  time.  Moreover,  it  does  not  apply 
to  removals  from  the  service,  which  may  still  be  made  for 
political  reasons.  In  spite  of  these  deficiencies,  however, 
there  can  be  no  denying  that,  within  the  past  decade  or 
two,  the  tone  and  character  of  our  consular  service  have 
considerably  improved.  It  has  been  urged  that  a  still 
greater  improvement  could  be  secured  if  the  Government 
would  establish  a  special  institution  for  training  men  for 
the  service.  But,  as  the  director  of  the  service  has  pointed 
out,  the  small  number  of  men  who  can  hope  to  gain  admis- 
sion seems  to  make  the  establishment  of  such  an  institution  , 
impracticable.^  | 

POWEES  AND  DUTIES 

A  newly  appointed  consul  proceeds  to  Washington,  where 
he  receives  his  instructions  and  executes  the  required  bond. 
He  then  goes  on  to  his  post.  Before  entering  upon  the  dis- 
charge of  his  duties,  however,  he  must  obtain  his  exequatur, 
which  is  the  official  recognition  by  the  foreign  government 
of  his  status  as  consul.  Its  bestowal  constitutes  formal  per- 
mission by  that  government  for  him  to  perform  his  official 
duties.  The  request  for  the  exequatur  is  made  upon  the 
minister  of  foreign  affairs  of  the  foreign  government  by 
the  principal  diplomatic  officer  of  the  United  States  in  the 
country  concerned.     The  foreign  government  has  a  right 

*  Conference  on  Training  for  Foreign  Service,  20. 
'Ibid.,  25. 


THE  CONSULAR  SERVICE  107 

to  refuse  the  request,  although  this  is  not  often  done,  and 
may  also  revoke  the  exequatur  at  any  time,  which  action  is 
equivalent  to  a  dismissal  of  the  consul.  It  is  not  required 
that  any  reason  be  assigned  for  refusing  or  revoking  an 
exequatur,  although  considerations  of  international  comity 
dictate  that  the  grounds  of  such  action  shall,  as  a  rule,  be 
stated. 

The  duties  of  consuls  are  stipulated  partly  in  acts  of 
Congress  and  partly  in  orders  and  regulations  prescribed 
by  the  President  and  issued  by  the  Department  of  State. 
By  act  of  1856  Congress  assumed  to  authorize  the  President 
"to  prescribe  such  regulations  and  to  make  and  issue  such 
orders  and  instructions,  not  inconsistent  with  the  Constitu- 
tion or  any  law  of  the  United  States,  in  relation  to  the 
duties  of  all  diplomatic  and  consular  officers  .  .  .  from  time 
to  time  as  he  may  think  conducive  to  the  public  interest."  ^ 
The  acts  of  Congress  and  executive  regulations  are  supple- 
mented by  the  provisions  of  special  treaties  and  the  general 
usages  of  international  law.  At  first  only  occasional  cir- 
cular instructions  were  issued  by  the  State  Departn\ent. 
In  1883  a  short  code  of  instructions  was  drawn  up  by  Sec- 
retary Livingston.  These  have  been  added  to  from  time 
to  time,  and  in  1896  a  comprehensive  compilation  of  regu- 
lations was  issued.^ 

Upon  taking  charge  of  his  office  the  consul  notifies  the 
Department  at  Washington  and  likewise  the  principal  dip- 
lomatic officer  of  the  United  States  in  the  country  where  he 
is  located.  He  also  familiarizes  himself  with  local  regula- 
tions, and  with  the  treaties  between  the  two  countries.  His 
duties  may  be  broadly  classified  as  negative  and  positive. 
Negatively,  it  is  his  duty  not  to  express  publicly  his  opinion 
on  local  political  questions  and  not  to  accept  gifts,  offices, 
or  titles  from  the  foreign  government  except  with  the 
special  consent  of  Congress.    His  positive  duties  are  more 

*  11  Stat,  at  L.,  60. 

'House  doc.  No.  303,  54th  Cong.,  2nd  sesa. 


108  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

numerous  and  varied.  They  may  be  divided  into  two  main 
classes:  (1)  those  relating  to  the  promotion  of  American 
trade  and  commerce,  and  (2)  those  pertaining  to  the  pro- 
tection of  the  interests  of  the  American  Government  and 
of  American  citizens. 

The  activities  of  the  consul  in  connection  with  the  promo- 
tion of  trade  consist  largely  in  the  collection  and  reporting 
of  information  concerning  commercial  conditions  and  op- 
portunities abroad.  He  supplies  this  information  in  part 
by  answering  inquiries  addressed  to  him  by  American  ex- 
porters and  business  houses,  but  more  generally  by  sending 
reports  to  the  Department  at  Washington  regarding  the 
possibilities  of  foreign  markets  for  American  products. 
Prior  to  1880  consular  reports  were  collected  and  published 
in  an  annual  volume.  This  publication  was,  however,  of 
comparatively  little  practical  use,  because  the  information 
was  often  largely  out  of  date  before  it  became  generally 
available.  Beginning  in  1880  monthly  reports  were  issued, 
and  in  1898  a  series  of  daily  reports  was  started.  Since 
some  of  the  matter  sent  in  by  consuls  does  not  bear  directly 
on  commerce,  or  is  not  in  the  most  usable  form,  a  consid- 
erable amount  of  editing  of  the  reports  is  done  by  the  con- 
sular bureau  in  the  State  Department  before  they  are 
issued  to  the  public. 

The  principal  subjects  upon  which  information  is  sup- 
plied by  the  consular  reports  are  the  special  demands  of 
local  markets  due  to  prevailing  customs  or  prejudices,  or 
to  unusual  shortage  of  crops ;  changes  in  foreign  laws  bear- 
ing on  commerce,  such  as  customs  regulations,  patent  laws, 
and  food  laws ;  and  foreign  methods  of  doing  business.  In- 
formation which  the  reports  supply  upon  these  topics  is 
frequently  of  much  value  to  American  business  men.  It 
will  doubtless  become  still  more  useful  as  the  members  of 
the  consular  service  gain  in  expertness  and  as  business  men 
themselves  learn  how  to  cooperate  with  the  consuls  more 
effectively. 


THE  CONSULAR  SERVICE  109 

The  second  main  class  of  positive  duties  of  consuls  con- 
sists in  the  protection  of  the  interests  of  the  American  gov- 
ernment and  of  American  citizens.  These  duties  may  be 
subdivided  according  as  they  relate  to  (1)  the  enforcement 
of  the  customs  regulations,  (2)  immigration  and  quaran- 
tine, (3)  shipping  and  seamen,  and  (4)  American  citizens 
other  than  seamen.  Closely  connected  with  the  promotion 
of  trade  is  the  work  of  consuls  in  detecting  and  preventing 
violations  of  the  customs  revenue  laws  of  the  United  States 
through  the  efforts  of  foreign  producers  to  undervalue 
their  goods  or  of  individuals  to  smuggle  valuable  articles 
into  this  country.  Consuls  are  required  to  certify  to  the 
correctness  of  the  valuation  of  merchandise  shipped  from 
foreign  countries  to  the  United  States,  and,  in  order  to  do 
so  intelligently,  must  investigate  the  costs  of  manufacture 
abroad. 

Consuls  are  required  to  aid  in  the  enforcement  of  the 
immigration  laws  of  the  United  States,  especially  with  ref- 
erence to  the  exclusion  of  certain  prohibited  classes  of 
immigrants,  such  as  contract  and  Chinese  laborers,  crim- 
inals, paupers,  and  persons  suffering  from  contagious  dis- 
ease. Before  a  vessel  sails  from  a  foreign  port  for  the 
United  States  the  master  is  required  to  submit  to  the 
American  consul  a  list  and  description  of  the  immigrants  on 
board,  and  the  consul  must  satisfy  himself  of  its  accuracy. 
This  record  is  later  to  be  submitted  to  the  immigration  in- 
spector at  the  port  of  arrival.  The  consul  also  inspects 
the  sanitary  and  health  conditions  of  the  vessel,  crew,  pas- 
sengers and  cargo ;  or  he  employs  inspectors  for  this  pur- 
pose. If  such  conditions  are  found  satisfactory,  he  issues 
to  the  vessel  a  bill  of  health. 

In  addition  to  certifying  to  the  bill  of  health  the  consul 
is  also  required  to  inspect  and  satisfy  himself  as  to  the 
correctness  of  the  other  papers  of  the  ;Bhip,  such  as  the 
charter-party,  crew  list,  and  certificate  of  registry.  In  case 
an  American  vessel  is  wrecked  or  stranded,  it  is  the  duty 


110  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

of  the  nearest  consul  to  render  such  assistance  as  may  be 
possible,  by  taking  action  for  the  preservation  of  the  ship 
and  cargo  and  relieving  the  distress  of  passengers  and 
crew.  He  is  authorized  to  send  shipwrecked  American  sea- 
men back  to  the  United  States.  Seamen  as  a  class  are, 
indeed,  under  the  special  protection  of  the  consul,  on  ac- 
count of  their  liability  to  be  imposed  upon.  The  consul 
supervises  the  engaging  and  discharge  of  seamen  in  a 
foreign  port,  and  sees  that  they  understand  the  terms  of 
their  contracts  and  that  their  wages  are  duly  paid.  He 
undertakes  to  settle  disputes  which  may  arise  between  mas- 
ter and  seamen,  investigates  charges  of  mutiny  upon  the 
high  seas,  and  may  send  mutineers  back  to  the  United 
States  for  trial. 

In  regard  to  American  citizens  other  than  seamen,  con- 
suls '^are  expected  to  endeavor  to  maintain  and  promote 
all  the  rightful  interests  of  American  citizens  and  to  pro- 
tect them  in  all  privileges  provided  for  by  treaty  or  con- 
ceded by  usage;  to  vise,  and,  when  so  authorized,  to  issue 
passports ;  when  permitted  by  treaty,  law,  or  usage,  to  take 
charge  of  and  settle  the  personal  estate  of  Americans  who 
may  die  abroad  without  legal  or  other  representatives, 
and  remit  the  proceeds  to  the  Treasury  in  case  they  are 
not  called  for  by  a  legal  representative  within  one  year. ' '  ^ 

EXTRATERRITORIALITY 

In  addition  to  the  foregoing  duties,  our  consuls  are  in- 
vested with  certain  judicial  powers  in  a  few  countries  whose 
methods  of  administering  justice  are  considered  distinctly 
below  the  standard  commonly  prevailing  in  civilized  states. 
In  such  countries,  including  China,  Turkey,  Siam,  and 
Morocco,  the  United  States  exercises  the  right  of  extra- 
territoriality, whereby  consuls  have  power  to  try  civil  cases 
to  which  Americans  are  parties,  and,  in  some  instances, 

*  American  Consular  Service,  5-6. 


THE  CONSULAR  SERVICE  111 

also  to  try  criminal  cases.  Inasmuch  as  the  rights  of  Ameri- 
can consuls  in  this  respect  rest  upon  treaties,  consular  con- 
ventions, or  ** capitulations''  with  the  particular  countries, 
they  vary  from  one  country  to  another  according  to  local 
conditions.  Indeed,  in  the  case  of  Turkey,  there  has  been 
a  long  outstanding  difference  of  opinion  between  the  two 
governments  as  to  the  validity  and  interpretation  of  the 
capitulations.  In  general,  however,  it  may  be  said  that  the 
American  consul  in  these  countries  has  a  right  to*  hear  and 
determine  all  disputes  of  a  justicable  nature  between 
-American  citizens  and  all  in  which  an  American  citizen 
is  defendant. 

In  1860  Congress  passed  an  act  providing  that  the  juris- 
diction of  consuls,  in  both  civil  and  criminal  cases,  should 
be  exercised  in  conformity  with  the  statutes  of  the  United 
States  in  so  far  as  they  should  be  found  suitable.  In  so  far 
as  the  statutes  were  not  suitable,  the  common  law  and  the 
law  of  equity  and  admiralty  were  to  be  applied;  and  if 
none  of  these  furnished  appropriate  remedies,  the  principal 
diplomatic  officer  of  the  United  States  should  supply  such 
deficiencies  by  issuing  regulations  having  the  force  of  law.^ 
Inasmuch  as  the  common  law  differs  in  different  states, 
there  was  at  first  some  doubt  as  to  the  meaning  of  this  pro- 
vision. The  circuit  court  of  appeals,  however,  held  that 
what  was  intended  was  the  common  law  in  force  in  the 
several  American  colonies  at  the  date  of  separation  from 
Great  Britain.^ 

There  was  also  at  first  some  doubt  as  to  whether  the 
Anglo-Saxon  principle  of  trial  by  jury,  as  provided  for  in 
the  Constitution,  was  applicable  to  cases  tried  in  consular 
courts.  In  1880  an  American  seaman  named  Boss  com- 
mitted murder  on  board  an  American  vessel  in  the  harbor 
of  Yokohama,  Japan,  in  which  country  the  United  States 
at  that  time  exercised  extraterritorial  jurisdiction.    The 

*  12  Stat,  at  L.,  73;  R.  S.,  sect.  4086. 
'Biddle  v.  United  States,  156  Fed.,  762. 


112  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

offender  was  convicted  in  a  trial  before  the  American  con- 
sular court,  without  either  a  grand  or  petit  jury.  Ten  years 
later,  while  serving  a  life  sentence  in  the  United  States,  he 
applied  for  a  writ  of  habeas  corpus  on  the  ground  that  his 
conviction  without  trial  by  jury  was  unconstitutional.  The 
Supreme  Court  held,  however,  that  the  Constitution  of  the 
United  States  can  have  no  operation  in  another  country  and 
that  Congress,  therefore,  in  regulating  the  procedure  in 
consular  courts,  is  not  limited  by  the  bill  of  rights  of  the 
Constitution.  As  a  further  reason  for  its  opinion,  the  court 
pointed-  out  that  it  would  ordinarily  be  impracticable  to 
operate  the  jury  system  in  such  courts,  on  account  of  the 
difficulty  of  obtaining  a  competent  grand  or  petit  jury.^ 

In  1906  Congress  passed  an  act  providing  for  the  estab- 
lishment of  the  United  States  Court  for  China,  to  exercise 
appellate  jurisdiction  in  such  cases  as  might  be  tried  in 
that  country  by  the  consular  courts.  The  court  was  to  have 
a  special  judge,  appointed  by  the  President  with  the  con- 
sent of  the  Senate;  and  the  headquarters  were  to  be  at 
Shanghai,  although  sessions  might  be  held  at  other  places. 
The  former  consular  courts,  however,  were  not  entirely 
superseded;  they  may  still  hear  minor  civil  and  criminal 
cases,  subject  to  appeal  to  the  court  at  Shanghai.  It  was 
also  provided  that  appeals  should  lie  from  the  final  judg- 
ments and  decrees  of  this  tribunal  to  the  circuit  court  of 
appeals  at  San  Francisco,  and  thence  to  the  Supreme  Court 
of  the  United  States.^ 

PEIVILEGES  AND  IMMUNITIES 

Consuls,  not  being  public  diplomatic  ministers,  are  not 
entitled  to  the  privileges  and  immunities  accorded  to  dip- 

» In  re  Ross,  140  U.  S.,  453.    Cf .  Dainese  v.  Hale,  91  U.  S.,  13. 

'  On  the  United  States  Court  for  China,  see  Hearings  before  the  Committee 
on  Foreign  Affairs  of  the  U.  S.  House  of  Representatives  on  the  bill  (H.  R. 
4281)  relating  to  the  United  States  Court  for  China,  1917;  C.  S.  Lobingier 
(judge  of  the  U.  S.  court  for  China),  ''The  Judicial  Superintendent  in 
China,"   Illinois  Law  Eeview,   XII,   403-408    (Jan.,    1918);    W.   R.   Austin, 


THE  CONSULAR  SERVICE  113 

lomatic  envoys,  and,  except  in  the  undeveloped  countries 
mentioned  above,  the  principle  of  extraterritoriality  does 
not  apply  to  them.  They  are  accorded  certain  privileges 
and  immunities,  however,  by  the  general  rules  of  interna- 
tional law,  and  these  have  been  modified  in  particular  cases 
by  consular  treaties  and  conventions  with  the  respective 
countries.  Such  treaties  usually  provide  that  a  consul  may 
display  the  national  flag  and  arms  at  the  consulate,  and 
that  his  dwelling  and  the  archives  of  the  consulate  shall  be 
inviolate.  Consuls  are  exempt  from  compulsory  process 
to  testify  in  court  when  such  service  would  interfere  with 
their  official  duties.^  Unless  a  citizen  of  the  country  in 
which  he  is  stationed,  a  consul  is  also  exempt  from  service 
on  juries  and  in  the  military  forces. 

Consuls  are  not  subject  to  taxation  on  their  salaries  or 
official  business,  but  they  are  liable  for  private  debts  and 
may  be  taxed  on  any  private  business  in  which  they  are 
engaged  or  on  any  income  which  they  derive  from  private 
sources.  In  the  absence  of  treaty  stipulation,  they  are 
subject  to  arrest,  trial,  and  conviction  for  violation  of  the 
criminal  laws  of  the  country  in  which  they  are  stationed. 
This  method  of  procedure  would  be  justified  in  extreme 
cases,  e,g,,  plotting  against  the  government.  In  ordinary 
cases,  however,  the  mere  revocation  of  the  exequatur  will 
suffice  and  is  preferable.^ 

REFERENCES 

American  Consular  Service  (Washington^  1920). 

Carr,  W.  J.,  "The  American  Consular  Service,"  Arrierican  Journal  of  In- 
ternational Law,  I,  891-913  (1907). 

Conner,  J.  E.,  Uncle  Sam  Abroad  (Chicago,  1900),  Lects.  II,  III. 

Foster,  J.  W.,  The  Practice  of  Diplomacy  (Boston,  1906),  Chap.  XI. 

Hinckley,  F.  E,  American  Consular  Jurisdiction  in  the  Orient  (Washing- 
ton, 1906). 

**Law  Courts  in  China,"  Case  and  Comment,  XXIV,  956-961   (May,  1918); 

Willoughby,  Foreign  Rights  and  Interests  in  Chma  (Baltimore,  1920),  Chap.  II. 
^In  re  Dillon,  7  Fed.  Cas.  710;  Moore,  Digest  of  Intemat.  Law,  V,  78  ff, 
'  7  Op.  U.  S.  Atty.-Gen.,  367,  cited  in  Moore,  ibid.,  V,  70, 


114  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Ingram,  A.  E.,  ed.,  Digest  of  Circular  Instructions  to  Consular  Officers 

(Washington,  1915). 
Jones,  C.  L.,  The  Consular  Service  of  the  United  States  (New  York,  1906). 
Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  V,  2-154. 
National  Civil  Service  Reform  League,  Report  on  the  Foreign  Service 

(New  York,  1919). 
Regulations  Prescribed  for  the  Use  of  the  Consular  Service^  House  doc.  No. 

303,  54th  Cong.,  2nd  sess.   (Washington,  1896). 
Sheppard,  E.  T.,  "American  Consular  Service,"  University  of  California 

Chronicle,  December,  1901. 
Stowell,  E.  C,  Le  Consul:  Fonctions,  ImmmniteSj  Organisation,  Exequatur 

(Paris,  1909). 
Stowell,  E.  C,  Consular  Cases  and  Opinions  (Washington,  1909). 
Swiggett,  G.  L.,  ed.,   The  Conference  on  Training  for  Foreign  Service, 

Bureau  of  Education,  Department  of  the  Interior,  Bulletin  No.  37 

(Washington,  1917). 
Van  Dyne,  F.,  Our  Foreign  Service  (New  York,  1909),  Chap.  III. 


CHAPTER  VII 

THE  POWER  OF  RECOGNITION 

UNDER  the  rules  of  international  law,  various  situa- 
tions may  arise  which  give  occasion  for  the  exercise 
by  a  state  of  the  power  of  recognition.  A  state  which  was 
formerly  one  may,  on  its  own  volition,  break  apart  and  form 
two  or  more  states  by  a  peaceful  revolution;  or,  on  the 
other  hand,  several  separate  states  may  merge  into  a 
single  state.  An  insurrection  may  break  out  in  a  state,  and 
a  colony  or  dependency,  or  some  other  portion  of  that  state, 
may,  by  force  of  arms,  endeavor  to  establish  its  independ- 
ence. Again,  a  state  may  change  its  form  of  government, 
e,g.f  from  a  monarchy  to  a  republic,  thereby  altering  the 
authority  with  which  foreign  governments  must  treat  in 
dealing  with  it.  Any  and  all  of  these  changes  may  be  taken 
n-ote  of  by  existing  members  of  the  family  of  nations 
through  the  exercise  of  the  power  of  recognizing  the 
de  facto  or  de  jure  independence,  the  belligerency  or  insur- 
gency of  new  states,  or  changes  of  government  in  estab- 
lished states. 

The  Constitution  of  the  United  States  is  silent  upon  the 
location,  among  the  organs  of  government,  of  the  power 
of  recognition.  The  general  practice  of  nations,  however, 
indicates  that  this  power  rests  in  that  organ  of  government 
which  is  vested  with  the  conduct  of  foreign  relations.^  As 
indicated,  furthermore,  by  international  practice,  the  modes 
of  recognition  fall,  in  general,  into  two  groups,  namely, 

*  Wilson,  Handbook  of  International  Law,  26. 

115 


/ 


116  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

those  which  are  direct  or  express  and  those  which  are  im- 
plied. Where  recognition  is  accorded  solely  by  the  method 
of  express  declaration,  such  declaration,  although  addressed 
to  the  recognized  state,  can  be  communicated  only  by  the 
indirect  method,  since,  hypothetically  at  all  events,  diplo- 
matic relations  with  the  state  in  question  are  still  non- 
existent.^ In  1903  the  United  States  expressly  recognized 
by  treaty  the  independence  of  Panama.  In  this  case,  how- 
ever, we  had  already  impliedly  recognized  the  new  republic 
by  entering  into  diplomatic  relations  with  it.^  Recognition 
of  belligerency  or  of  insurgency  may  be  accorded  by  the 
issuance  of  a  proclamation  of  neutrality.    Thus,  President 

j  Cleveland  by  a  proclamation  issued  in  1895,  recognized  the 
existence  of  an  insurrection  in  Cuba.^    Great  Britain  simi- 

!  larly  recognized  the  belligerency  of  the  Confederacy  in 

I  May,  1861.^ 

The  more  usual  method  of  recognition,  however,  has  been 
that  of  necessary  implication  arising  from  other  acts,  such 
as  sending  and  receiving  diplomatic  representatives  and 
entering  into  conventional  relations.  Hence  it  is  not  neces- 
sary that  there  should  be,  in  the  Constitution,  any  express 
grant  of  the  power  of  recognition  to  any  particular  organ 
of  the  government;  this  power  may  be  exercised  mciden- 
tally  by  the  appropriate  organ  in  connection  with  the  exer- 
Sse  of  express  constitutional  powers. 

*Thu8    in    a    proclamation    of    April    22,    1884,    Secretary    Freylinghuysen 

1  effectually  recognized  the  newly  established  Congo   Free  State  by  providing 

j  for  an  olBQcial  salute  to  its  flag.    Sen.  doc.  40,  54th  Cong.,  2nd  sess.,  p.  11. 

I      'In  receiving  a  minister  from  Panama,  President  Roosevelt,  however,  used 

language   expressly  recognizing  the   independence   of  that  republic,  although 

such  recognition  would  have  been  implied  from  the  mere  act  of  receiving  him. 

For.  Eels,  of  U.  S.,  1903,  p.  245. 

'Richardson,  Mess,  and  Pap.  of  the  Presidents,  IX,  591.  Cf.  The  Three 
Friends,  166  U.  S.,  1,  in  which  the  court  followed  the  President  in  recognizing 
a  state  of  insurgency,  as  distinguished  from  belligerency,  in  Cuba. 

*  Since  President  Lincoln  had  previously "  proclaimed  a  blockade  of  the  Con- 
federate ports,  the  British  action  was  justifiable  from  the  standpoint  of 
international  law.  When,  however,  in  1867,  an  insurrection  broke  out  in 
Abyssinia,  a  resolution  was  introduced  in  the  Senate  providing  for  a  declaration 
of  our  neutrality  between  the  king  of  that  country  and  Great  Britain.  Cong. 
Globe,  40th  Cong.,  1st  sess.,  Nov.  29,  1867,  p.  810. 


THE  POWER  OF  RECOGNITION  117 

CONGRESSIONAL.  INFLUENCE  UPON  BECOGNITION 

It  has  sometimes  been  asserted  that  Congress  has  a  con- 
current power  to  accord  recognition,  and  the  executive  de- 
partment has  occasionally  shown  a  disposition  ^to  concede 
to  that  body  some  influence  in  this  field.  The  question  came 
up  prominently  during  Monroe's  administrations  in  con- 
nection with  the  proposal  to  recognize  the  South  American 
states  which  had  revolted  from  Spain.  Before  the  Presi- 
dent took  definite  action  in  the  matter,  Henry  Clay,  Speaker 
of  the  House  of  Representatives,  sought,  in  1818,  to  secure 
an  amendment  to  an  appropriation  bill  authorizing  the  ex- 
penditure of  a  certain  sum  **for  one  year's  salary  and  an 
outfit  to  a  minister''  to  the  South  American  provinces.^ 
As  originally  introduced,  the  amendment  described  these 
provinces  as  **the  independent  provinces  of  the  River 
Plata."  This  wording,  however,  was  shortly  afterwards 
changed  so  as  to  make  the  appropriation  for  the  minister 
to  the  **  United  Provinces  of  the  Rio  de  la  Plata,  whenever 
the  President  shall  deem  it  expedient  to  send  a  minister" 
thereto.^  The  amendment  was  not  adopted,  but,  in  1821, 
the  House  passed  a  resolution  proposed  by  Clay  which  pro- 
vided that  that  body  would  *  *  give  its  constitutional  support 
to  the  President  whenever  he  may  deem  it  expedient  to 
recognize  the  sovereignty  and  independence  of  any  of  the 
said  provinces."  ^  In  the  following  year  the  President  sent 
a  message  to  Congress  expressing  the  opinion  that  the  prov- 
inces ought  to  be  recognized  and  requesting  the  cooperation 
of  the  legislative  branch.*  In  response.  Congress  appropri- 
ated a  sum  of  money  to  defray  the  expenses  of  **such 
missions  to  the  independent  nations  on  the  American  con- 
tinent as  the  President  may  deem  proper."  ^  The  passage 
of  this  act,  however,  did  not  of  itself  constitute  a  recognition 

*  Annals  of  Cong.,  15th  Cong.,  Ist  sess.,  II,  1468. 
Ubid.,  1500. 

'  Annals  of  Cong.,  IGth  Cong.,  2nd  sess. 

*  Richardson,  Mess,  and  Pap.  of  the  Presidentt,  II,  117» 
"Annals,  17th  Cong.,  Ist  sess.,  II,  app.,  2603, 


118  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

of  any  particular  states,  since  discretion  in  the  matter 
remained  to  the  President.^  The  actual  recognition  was 
then  extended  by  the  President,  by  sending  and  receiving 
diplomatic  representatives  from  the  various  South  Ameri- 
can republics. 

During  the  debate  on  the  recognition  of  the  former 
Spanish- American  provinces  no  claim  was  made  that  Con- 
gress could  effect  such  recognition  through  an  express  dec- 
laration. But  it  was  argued  that  recognition  could  be 
extended  incidentally  or  indirectly  through  the  exercise  of 
one  of  the  undoubted  legislative  powers  of  Congress,  such 
as  that  of  making  appropriations.  Clay  also  held  on  this 
occasion  that  this  might  be  done  through  the  exercise  by 
Congress  of  the  power  to  regulate  foreign  commerce.^  Al- 
though the  power  of  Congress  thus  to  effect  recognition 
was  not  admitted  by  the  President,  Monroe,  by  his  action, 
indicated  that,  in  a  matter  of  such  importance,  the  coopera- 
tion and  support  of  Congress  was  desirable,  especially  since 
the  act  of  recognition  might  be  considered  a  casus  belli  by 
Spain.  The  incident  shows,  however,  that  the  power  to 
recognize,  as  well  as  the  responsibility  for  recognition, 
rests  with  the  President. 

On  other  occasions  the  Executive  has  seemed  to  concede 
to  Congress  a  concurrent  power  of  recognition.  In  1836 
the  Senate  and  House  of  Representatives  passed  resolu- 
tions declaring  that  ^*the  independence  of  Texas  ought  to 
be  acknowledged  by  the  United  States  whenever  satisfac- 
tory information  shall  be  received  that  it  has  in  successful 
operation  a  civil  government  capable  of  performing  the 

*  Henry  Winter  Davis,  chairman  of  the  House  Committee  on  Foreign  Affairs, 
maintained  in  1864  that  this  act  constituted  and  completed  the  recognition*  of 
the  new  nations  and  that  the  sending  of  ministers  to  some  or  all  of  them  * '  was 
a  matter  of  executive  discretion,  not  at  all  essential  to  or  connected  with  the 
fact  of  recognition."  House  rept.  129,  38th  Cong,,  1st  sess.,  p.  4.  This 
view,  however,  does  not  seem  to  be  well  founded. 

'Annals,  15th  Cong.,  1st  sess.,  II,  .1616.  Clay  maintained  the  same  prop- 
osition in  1836  when,  as  chairman  of  the  Senate  Committee  on  Foreign  Rela- 
tions, he  made  a  report  on  the  recognition  of  the  independence  of  Texas. 
Sen.  doc.  231,  56th  Cong.,  2nd  sess.,  part  6,  p.  73. 


T^E  POWER  OF  RECOGNITION  119 

/ 
duties  and  fulfilling  the  obligations   of  an  independent 
power.'*  ^    In  December  of  the  same  year  President  Jack- 
son sent  a  message  to  Congress  on  the  question  of  acknowl- 
edging the  independence  of  Texas,  saying: 

**Nor  has  any  deliberate  inquiry  ever  been  instituted  in 
Congress  or  in  any  of  our  legislative  bodies  as  to  whom  be- 
longed the  power  of  originally  recognizing  a  new  State — 
a  power  the  exercise  of  which  is  equivalent  under  some 
circumstances  to  a  declaration  of  war;  a  power  nowhere 
expressly  delegated,  and  only  granted  in  the  Constitution 
as  it  is  necessarily  involved  in  some  of  the  great  powers 
given  to  Congress,  in  that  given  to  the  President  and  Sen- 
ate to  form  treaties  with  foreign  powers  and  to  appoint 
ambassadors  and  other  public  ministers,  and  in  that  con- 
ferred upon  the  President  to  receive  ministers  from  foreign 
nations.  In  the  preamble  to  the  resolution  of  the  House  of 
Representatives  it  is  distinctly  intimated  that  the  expedi- 
ency of  recognizing  the  independence  of  Texas  should  be 
left  to  the  decision  of  Congress.  In  this  view,  on  the  ground 
of  expediency,  I  am  disposed  to  concur,  and  do  not,  there- 
fore, consider  it  necessary  to  express  any  opinion  as  to  the 
strict  constitutional  right  of  the  Executive,  either  apart 
from  or  in  conjunction  with  the  Senate,  over  the  subject. 
It  is  to  be  presumed  that  on  no  future  occasion  will  a  dis- 

*  Debates,  24th  Cong.,  1st  sess.,  p.  4621.  In  the  Senate  the  adoption  of 
the  resolution  was  preceded  by  the  submission  of  a  report  by  Henry  Clay  from 
the  committee  on  foreign  relations,  June  18,  1836,  in  which  it  was  said: 

*'The  recognition  of  Texas  as  an  independent  power  may  be  made  by  the 
United  States  in  various  ways:  First,  by  treaty;  second,  by  the  passage  of 
a  law  regulating  commercial  intercourse  between  the  two  powers;  third,  by 
sending  a  diplomatic  agent  to  Texas,  with  the  usual  credentials;  or,  lastly, 
by  the  Executive  receiving  and  accrediting  a  diplomatic  representative  from 
Texas,  which  would  be  a  recognition  as  far  as  the  Executive  only  is  competent 
to  make  it.  In  the  first  and  third  modes  the  concurrence  of  the  Senate,  in  its 
executive  character,  would  be  necessary;  and  in  the  second,  in  its  legislative 
character.  The  Senate  alone,  without  the  cooperation  of  some  other  branch 
of  the  Government,  is  not  competent  to  recognize  the  existence  of  any  power. 
The  President  of  the  United  States,  by  the  Constitution,  has  the  charge  of 
their  foreign  intercourse.  Regularly  he  ought  to  take  the  initiative  in  the 
acknowledgment  of  the  independence  of  any  new  power.  ...  If,  in  any  in- 
stance, the  President  should  be  tardy,  he  may  be  quickened  in  the  exercise  of 
his  power  by  the  expression  of  the  opinion  or  by  other  acts  of  one  or  both 
branches  of  Congress,  as  was  done  in  relation  to  the  republics  formed  out  of 
South  America.  But  the  committee  do  not  think  that  on  this  occasion  any 
tardiness  is  justly  imputable  to  the  Executive.**  Sen.  doc.  231,  56th  Cong., 
2nd  sess.,  part  6,  pp.  73-74. 


120  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

pute  arise,  as  none  has  heretofore  occurred,  between  the 
Executive  and  Legislature  in  the  exercise  of  the  power  of 
recognition.  It  will  always  be  considered  consistent  with 
the  spirit  of  the  Constitution,  and  most  safe,  that  it  should 
be  exercised,  when  probably  leading  to  war,  with  a  previ- 
ous understanding  with  that  body  by  whom  war  can  alone 
be  declared,  and  by  whom  all  the  provisions  for  sustaining 
its  perils  must  be  furnished. ' '  ^ 

Congress  responded  to  the  President's  message  by  pass- 
ing an  act  appropriating  money  ^ '  for  the  outfit  and  salary 
of  a  diplomatic  agent  to  be  sent  to  the  republic  of  Texas, 
whenever  the  President  may  receive  satisfactory  evidence 
that  Texas  is  an  independent  power,  and  shall  deem  it  ex- 
pedient to  appoint  such  a  minister/'  ^  Shortly  afterwards. 
President  Van  Buren  recognized  Texas  by  sending  to  the 
republic  a  charge  d'affaires.  The  extent  to  which  the  Presi- 
dent deferred  to  Congress  in  this  case  in  the  matter  of 
recognition  is  rather  exceptional.  The  act  passed,  how- 
ever, although  indicating  financial  and  moral  support  of 
the  Executive  in  the  project,  can  hardly  be  considered  as, 
of  itself,  a  complete  official  act  of  recognition  by  our  Gov- 
ernment. The  discretion  as  to  when  the  proposed  action 
should  be  taken,  or  whether  it  should  be  taken  at  all,  was 
left  by  Congress  to  the  President.^  Moreover,  the  Presi- 
dent could  have  recognized  Texas,  had  he  seen  fit  to  do 
so,  without  waiting  for  the  passage  of  an  act  or  the  expres- 
sion of  any  opinion  on  the  part  of  Congress. 

In  1849  Secretary  Clayton,  in  his  instructions  to  A. 
Dudley  Mann,  the  special  and  confidential  agent  of  the 
United  States  in  Hungary,  seems  to  have  surpassed  even 
President  Jackson  in  conceding  to  Congress  a  power  of 
recognition.^    No  actual  recognition,  however,  was  accorded 

*  Eichardson,  Mess,  and  Pap.  of  the  Presidents,  III,  267. 
=  5  Stat,  at  L.,  170. 

»As  confirming  this  statement,  see  the  message  of  President  MeKinley, 
December  6,  1897,  Richardson,  op.  cit.,  X,  146. 

*  Secretary  Clayton  said:  "Should  the  new  government  prove  to  be  in  your 
opinion  firm  and  stable,  the  President  will  cheerfully  recommend  to  Congress, 


THE  POWER  OF  RECOGNITION  121 

in  that  instance,  as  our  emissary  reported  that  the  condi- 
tions were  not  propitious  for  such  action. 

The  next  assertion  of  Congressional  power  over  recogni- 
tion occurred  in  1864,  when,  as  we  have  seen,^  the  House  of 
Representatives  adopted  a  resolution  declaring  that  *  *  Con- 
gress has  a  constitutional  right  to  an  authoritative  voice 
in  declaring  and  prescribing  the  foreign  policy  of  the 
United  States,  as  well  in  the  recognition  of  new  powers  as 
in  other  matters;  and  it  is  the  constitutional  duty  of  the 
President  to  respect  that  policy,"  etc.^  The  adoption  of 
the  resolution  was  preceded  by  fhe  submission  of  a  report 
from  the  Committee  on  Foreign  Affairs  designed  to  show 
that  the  precedents  were  in  favor  of  a  Congressional  power 
of  recognition.^  In  spite  of  the  passage  of  this  resolution, 
however.  President  Lincoln  kept  control  of  the  situation 
created  by  the  presence  of  the  French  in  Mexico. 

On  December  21,  1896,  the  Senate  Committee  on  Foreign 
Relations  submitted  a  report  recommending  the  adoption 
of  a  joint  resolution  declaring  **that  the  independence  of 
the  Republic  of  Cuba  be,  and  the  same  is  hereby,  acknowl- 
edged by  the  United  States  of  America.''^  On  the  same 
day  Senator  Bacon  offered  a  concurrent  resolution  declar- 

at  their  next  session,  the  recognition  of  Hungary;  and  you  might  intimate, 
if  you  should  see  fit,  that  the  President  would  in  that  event  be  gratified  to 
receive  a  diplomatic  agent  from  Hungary  in  the  United  States,  by  or  before 
the  next  meeting  of  Congress;  and  that  he  entertains  no  doubt  whatever  that, 
in  case  her  new  government  should  prove  to  be  firm  and  stable,  her  independence 
would  be  speedily  recognized  by  that  enlightened  body."  Senate  Ex.  doc.  43, 
31st  Cong.,  1st  sess.,  pp.  5-6  (June  18,  1849). 

*  Su(pra,  Chap.  I. 

'  Cong.  Globe,  38th  Cong.,  2nd  sess.,  Dec.  19,  1864,  pp.  48,  66,  67. 

'  House  rept.  129,  38th  Cong.,  1st  sess.  In  this  report  it  is  maintained 
that  Hayti  and  Liberia  were  first  recognized  by  an  act  of  Congress  of  July 
5,  1862.  The  provision  referred  to,  however,  was  a  clause  in  an  appropriation 
bill  which  merely  authorized  the  President,  with  the  advice  and  consent  of  the 
Senate,  to  appoint  diplomatic  representatives  to  the  republics  of  Hayti  and 
Liberia.  The  usual  proviso  stipulating  that  the  recognition  should  take  place 
whenever  the  President  should  deem  it  expedient  did  not  appear.  The  act,  in 
itself,  did  not  constitute  a  full  official  recognition.  The  President  might  have 
sent  such  diplomatic  representatives,  had  the  act  not  been  passed;  on  the 
other  hand,  he  could  not  have  been  compelled  to  exercise  the  authority  which 
the  act  purported  to  confer. 

*  Senate  rept.  1160,  54th  Cong.,  2nd  sess.,  reprinted  in  Sen.  doc.  231,  56th 
Cong.,  2nd  sess.,  part  7,  p.  64. 


!1 


122  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ing  tLat  the  question  of  recognition  **is  one  exclusively  for 
the  determination  of  Congress. ' '  ^    Recognition  of  Cuba  at 
that  time,  however,  was  opposed  by  President  Cleveland,^ 
and  President  McKinley  later  adopted  the  same  attitude. 
In  his  message  of  December  6,  1897,  the  latter  said:  ^'I 
regard  the  recognition  of  the  belligerency  of  the  Cuban 
insurgents   as   now  unwise,   and    therefore   inadmissible. 
Should  that  step  hereafter  be  deemed  wise  as  a  measure 
of  right  and  duty,  the  Executive  will  take  it.  * '  ^     On  Janu- 
ary 11,  1897,  the  results  of  a  thorough  investigation  of  the 
precedents  relating  to  the  power  of  recognition,  made  by 
the  Senate  Committee  on  Foreign  Relations,  were  pub- 
lished, and  they  showed  that  recognition  is  distinctly  an 
executive  function  and  that  Congress  can  exercise  no  influ- 
ence  over  it  except  indirectly.    **In  the  department   of 
international  law,  properly  speaking,"  it  was  declared,  '^a 
Congressional  recognition  of  belligerency  or  independence 
would  be  a  nullity. ' '  ^    In  view  of  the  attitude  of  the  Presi- 
dent and  of  many  members  of  the  Senate,  the  joint  resolu- 
tion, as  finally  passed,  did  not  assume,  by  that  method,  to 
confer  recognition  upon  the  Cuban  republic,  but  merely 
recited  that  **the  people  of  the  island  of  Cuba  are,  and  of 
right  ought  to  be,  free  and  independent.  ^  *  ^     This  was  not 
generally  considered  at  the  time  as  a  Congressional  recog- 
nition of  the  independence  of  a  new  state;   and  this  view 
subsequently  received  the  sanction  of  the  Supreme  Court.® 

*The  full  text  of  the  Bacon  resolution  was  as  follows:  ''The  question  of 
the  recognition  by  this  Government  of  any  people  as  a  free  and  independent 
nation  is  one  exclusively  for  the  determination  of  Congress  in  its  capacity  as 
the  law-making  power;  this  prerogative  of  sovereign  power  does  not  appertain 
to  the  Executive  department  of  the  Government  except  in  so  far  as  the 
President  is,  under  the  Constitution,  by  the  exercise  of  the  veto,  made  a  part 
of  the  law-making  power  of  the  Government. ' '  Congressional  Record,  December 
21,  1896,  vol.  29,  p.  357.  The  resolution  was  referred  to  the  Committee  on 
the  Judiciary,  from  which  it  seems  never  to  have  emerged. 

^  Richardson,  Mess,  and  Pap.  of  the  Presidents,  IX,  719. 

'Richardson,  op.  cit.,  X,  134. 

*  Senate  doc.  56,  54th  Cong,,  2nd  sesa.  The  conclusions  presented  are  re- 
printed in  Corwin,  President's  Control  of  Foreign  EelationrS,  79-80. 

=  30  Stat,  at  L.,  738  (April  20,  1898). 

"Neely  v.  Henkel,  180  U.  S.,  124-5,  where  it  was  said:  *'The  contention 
that  the  United  States  recognized  the  existence  of  an  established  government 


THE  POWER  OF  RECOGNITION  123 

EXECUTIVE  CONTROL  OVER  RECOGNITION 

The  Constitution,  as  we  have  seen,  does  not  expressly 
confer  the  power  of  recognition  upon  any  organ  of  the 
Government.  But,  in  determining  the  location  of  this 
power,  we  may  assume  as  a  general  principle  that  **all 
duties  in  connection  with  foreign  relations  not  otherwise 
specified  fall  within  the  sphere  of  the  executive/'  ^  More- 
over, the  investment  in  the  President  of  the  power  of  recog- 
nition may  be  inferred  from  the  expressly  granted  powers 
of  appointing  and  receiving  diplomatic  representatives  and 
of  participating  in  the  making  of  treaties,  and  from  the 
general  grant  of  executive  power.  In  appointing  diplo- 
matic representatives  and  in  entering  into  international 
agreements,  the  President  usually  acts  in  conjunction  with  ^ 
the  Senate ;  and,  to  that  extent,  the  Senate  may  participate 
in  the  exercise  of  the  power  of  recognition.  But  the  Presi- 
dent may,  and  frequently  does,  send  diplomatic  agents  and '' 
enter  into  international  agreements  without  consulting  the 
Senate.^  Even  in  appointing  regular  diplomatic  repre- 
sentatives, the  President  takes  the  initiative  and,  moreover, 
may  sometimes  make  the  appointment  during  the  recess  of  y/ 
the  Senate  and  thus  complete,  on  his  sole  authority,  the 
act  of  recognition  even  though  the  Senate,  at  its  next  ses- 
sion, fails  to  confirm  the  appointment.^  Furthermore,  when 

known  as  the  Eepublic  of  Cuba.  .  .  is  without  merit.  The  declaration  by 
Congress  that  the  people  of  Cuba  were  and  of  right  ought  to  be  free  and 
independent  was  not  intended  as  the  recognition  of  the  existence  of  an  organ- 
ized government  instituted  by  the  people  of  that  Island  in  hostility  to  the 
government  maintained  by  Spain.  .  .  .  Both  the  legislative  and  executive 
branches  of  the  government  concurred  in  not  recognizing  the  existence  of  any 
such  government  as  the  Eepublic  of  Cuba.'*     (1901.) 

*  Sen.  doc.  56,  54th  Cong.,  2nd  sess.,  p.  18. 

'  The  sending  of  a  mere  Presidential  agent  need  not  be  considered  as 
amounting  to  an  act  of  recognition,  certainly  not  to  recognition  of  de  jwre 
independence.  It  may,  however,  be  tantamount  to  a  recognition  of  "a.  de  facto 
government.  Thus  President  Wilson,  although  refusing  to  recognize  the.Huerta 
regime  as  the  de  jure  government  of  Mexico,  recognized  it  as  the  de  facto 
government  by  sending  special  Presidential  agents  to  it. 

'In  this  case  "the  necessity  for  a  later  confirmation  of  the  appointment 
would  not  operate  as  a  delay  of  recognition,  nor  would  a  refusal  to  confirm 
amount  to  a  withdrawal  of  recognition — it  would  merely  require  an  appoint- 
ment agreeable  to  the  Senate. '  *     C.  A.  Berdahl,  ' '  The  Power  of  Recognition, ' ' 


124  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  President  performs  the  act  of  recognition  by  receiving 
a  foreign  minister,  or  by  granting  an  exequatur  to  a  foreign 
consul,  there  is  no  question  that  the  function  belongs  exclu- 
sively to  him.^ 

Recognition  through  receiving  a  foreign  minister  is  the 
customary,  regular,  and  most  proper  method.  It  is  the 
most  proper  method  because,  ordinarily,  the  application 
for  recognition  should  come  from  the  new  state  or  govern- 
ment. This  was  the  method  pursued  in  1793,  on  the  first 
occasion  when  we  granted  recognition  to  a  foreign  govern- 
ment; President  Washington  received  M.  Genet  as  the 
minister  to  the  United  States  from  the  French  Republic.^ 
As  has  been  pointed  out,  *  ^  the  power  to  receive  public  min- 
isters, which  is  confided  in  the  President  alone,  implies  the 
power  to  decide  who  should  be  received.  And  this  implies 
the  power  to  examine  their  credentials  and  ascertain 
whether  the  foreign  potentates,  by  whom  the  credentials  are 
made  out,  are,  in  fact,  sovereigns.'*^ 

The  predominating  and  controlling  position  of  the  Pres- 
ident in  the  matter  of  recognition  rests  fundamentally  upon 
the  fact,  as  we  have  seen,  that  that  official  is  the  sole  medium 

Am.  Jour.  Intemat.  Law,  XIV,  525  n.  Moreover,  as  was  pointed  out  in  the 
Senate  document  previously  cited,  where  the  President  and  Senate  participate 
in  recognizing  a  new  state  by  sending  a  diplomatic  representative  thereto,  no 
previous  legislation  by  Congress  is  necessary,  ' '  as  the  envoy  would  be  an  officer 
whose  position  is  established  by  the  Constitution  itself,  and  who  could  either 
give  his  services  gratuitously  or  be  reimbursed  out  of  a  contingent  fund,  as 
was  done  in  the  case  of  President  Monroe's  South  American  commissioners  in 
1818."    Sen.  doc.  56,  p.  29. 

^Eecognition  was  extended  by  the  President  through  the  issuance  of  an 
exequatur  in  the  cases  of  Guatemala,  Uruguay,  Venezuela,  and  New  Granada. 
Senate  doc.  40,  54th  Cong.,  2nd  sess.,  pp.  11,  13. 

"Sen.  doc.  40,  cited  above,  p.  2. 

'Senate  doc.  56,  cited  above,  p.  19.  As  showing  how  far  some  of  the 
predictions  of  the  framers  of  the  Constitution  fell  rfiort,  it  is  interesting  to 
note  Hamilton's  assertion  in  the  Federalist  (No.  69)  that  the  President's  power 
to  receive  ambassadors  and  other  public  ministers  *'is  more  a  matter  of 
dignity  than  of  authority.  It  is  a  circumstance  which  will  be  without  conse- 
quence in  the  administration  of  the  government. ' '  Hamilton  very  soon  realized 
his  mistake,  for  in  the  first  of  the  series  of  letters  signed  ''Pacificus"  and 
dated  June  29,  1793,  he  declared  that  the  right  of  the  President  to  receive 
ambassadors  and  other  public  ministers  *' includes  that  of  judging,  in  the  case 
of  a  revolution  of  government  in  a  foreign  country,  whether  the  new  rulers  are 
competent  organs  of  the  national  will,  and  ought  to  be  recognized  or  not." 
Works  (Lodge  ed.),  IV,  144. 


THE  POWER  OP  RECOGNITION  125 

of  communication  between  the  United  States  and  foreign 
governments.^  In  consequence,  it  is  an  established  rule  that 
diplomatic  representatives  of  foreign  governments — and 
the  same  is  true  of  our  own  diplomats — hold  direct  com- 
munication with  the  executive  branch  of  the  Government, 
and  not  with  Congress.  Therefore,  even  if  Congress  had  a  »^ 
power  of  recognition,  it  could  exercise  it  only  in  an  indirect 
and  roundabout  manner.^  Moreover,  the  President  is  belter 
qualified  than  Congress  to  determine  whether  recognition 
should  be  accorded,  because  he  is  ordinarily  in  possession 
of  fuller  and  more  authentic  information  as  to  the  facts  of 
the  situation.  Eecognition  of  a  de  facto  government,  as 
has  b^en  pointed  out,  *4s  in  law  the  recognition  of  a  fact. 
This  fact  is  the  existence  of  a  politically  organized  com- 
munity having  an  established  seat  of  government,  enforcing 
obedience  to  its  mandates  within  its  limits  in  a  civilized 
and  orderly  manner,  and  asserting  its  independence,  with  a 

reasonable  chance  of  being  able  to  make  good  its  asser- 
tion.''^ 

These  are  questions  of  fact  which,  as  a  rule,  the  President 
alone  is  able  to  decide  upon  a  sufficient  basis  of  information. 
Moreover,  if  he  does  not  have  the  necessary  information, 
he  can  secure  it  by  sending  special  Presidential  agents  for  i^ 
that  purpose.  This  was  done,  for  example,  in  1849,  when 
the  President  sent  A.  Dudley  Mann  as  a  special  and  con- 
fidential agent  to  inquire  into  the  prospects  of  Hungarian 
independence ;  as  a  result  of  his  unfavorable  report,  recog- 
nition was  not  accorded.  The  same  procedure  was  adopted 
by  President  Monroe  in  1817,  when  he  sent  commissioners 
to  South  America  to  inquire  into  the  ability  of  the  revolted 
Spanish  provinces  to  establish  their  independence.  Again, 
in  1836  President  Jackson  sent  an  agent  to  Texas  to  investi- 
gate conditions  with  a  view  to  the  recognition  of  that  re- 

*  Supra,  Chap.  I. 

'Cf.  Corwin,  President's  Control  of  Foreign  Relations,  82. 
'E.  Maxey,  '* Legal  Aspects  of  the  Panama  Situation/'  Yale  Law  Jour., 
XIII,  85  (Dec,  1903). 


126  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

public  if  the  situation  warranted  it.  Upon  information 
secured  in  this  way,  the  President,  in  all  of  these  cases, 
based  his  action.  Congress  could  not  have  acted  with  suf- 
ficient information,  except  in  so  far  as  it  might  have  been 
voluntarily  transmitted  by  the  President.  **  Where  knowl- 
edge is  not  granted,  responsibility  is  absolved.  Eecogni- 
tion,  therefore,  necessarily  implies  previous  lawful  com- 
mand of  all  official  sources  of  information  by  the  depart- 
ment of  government  charged  with  the  duty  of  decision. '  '^ 

That  the  President  is  in  practically  exclusive  control  of 
the  power  of  recognition,  except  when  the  Senate  may 
participate  in  the  making  of  treaties  or  appointments,  is 
•  farther  indicated  by  recent  practice.  The  policy  whereby 
the  infant  republic  of  Panama  was  somewhat  hastily  recog- 
nized shortly  after  the  insurrection  of  1903  was  adopted 
and  carried  out  by  President  Eoosevelt  and  Secretary  Hay.^ 
President  Wilson  conceived  and  put  into  execution  his  own 
theory  as  to  the  policy  which  our  Government  should  pursue 
in  recognizing  rapidly  shifting  Latin-American  govern- 
ments. In  his  address  of  September  2,  1916,  accepting  his 
renomination,  he  said:  **So  long  as  the  power  of  recogni- 
tion .rests  with  me,  the  Government  of  the  United  States 
will  refuse  to  extend  the  hand  of  welcome  to  anyone  who 
obtains  power  in  a  sister  republic  by  treachery  and  vio- 
lence.'^  It  was  in  pursuance  of  this  policy  that  he  refused 
to  recognize  Huerta  in  Mexico  and  finally  brought  about 
his  downfall.  It  was  also  by  the  sole  policy  and  action  of 
the  President  that  the  government  of  Carranza  was  recog- 
nized, first  as  the  de  facto,  and  later  as  the  de  jure,  govern- 
ment of  that  country.^ 

*  Judge  W.  L.  Penfield  (Solicitor  of  the  State  Department),  ''Recognition 
of  a  New  State — Is  It  an  Executive  Function  V  American  Law  Beview, 
XXXII,  406  (1898). 

^Latane,  America  as  a  World  Power,  215-220. 

"The  same  statement  may  be  made  with  reference  to  the  recognition  of 

i  Czecho-Slovakia  in  1918,     A  Congressional  attempt  to  interfere  in  the  Presi- 

■*  dent's  exclusive  control  over  recognition  was  made  when,  on  December  3,  1919, 

Senator  Fall  introduced  a  concurrent  resolution  providing  that  "the  President 

be  and  he  is  hereby  requested  to  withdraw  from  Venustiano  Carranza  the  rec- 


THE  POWER  OF  RECOGNITION  127 

It  may  be  objected  that  the  practice  which  puts  the  power 
of  recognition  exclusively  in  the  hands  of  the  executive  is 
dangerous,  in  that  it  assigns  to  one  man  too  much  discretion 
in  making  decisions  which  may  vitally  affect  the  peace  and 
safety  of  the  nation.  It  is  true  that  the  action  of  our  Gov- 
ernment in  according  recognition  to  a  new  state  may  be  re- 
garded as  a  casus  belli  by  some  third  power.  But  the  exer- 
cise of  other  powers  granted  to  the  President  by  the  Consti- 
tution or  established  in  practice  as  belonging  exclusively 
to  him  may  involve  the  nation  in  similar  hazards.  This 
circumstance  does  not  reduce  the  extent  of  the  power ;  but 
it  strongly  suggests  that  ^*it  is  most  advisable  as  well  as 
proper  for  the  Executive  first  to  consult  the  legislative 
branch  as  to  its  wishes  and  postpone  its  own  action  if  not 
assured  of  legislative  approval.  ^ '  ^  The  power  and  the  re- 
sponsibility, nevertheless,  remain  with  the  President,  who 
may  give  to  expressions  of  opinion  on  the  part  of  Congress 
such  weight  as  they  seem  to  him  to  deserve.^ 

THE    COUKTS    AND    RECOGNITION 

The  conclusions  reached  above  on  the  location  of  the 
power  of  recognition  are  confirmed  by  the  testimony  of  the 

ognition  heretofore  accorded  him  by  the  United  States  as  President  of  the 
Republic  of  Mexico  and  to  sever  all  diplomatic  relations  now  existing  between 
this  Government  and  the  pretended  government  of  Carranza. ''  Congressional 
Record,  vol.  59,  p.  73.  The  resolution  was  referred  to  the  committee  on  foreign 
relations,  but  was  never  reported  out,  for  a  few  days  later  President  Wilson 
wrote  Senator  Fall  a  letter  in  which  he  said:  "I  should  be  gravely  concerned 
to  see  any  such  resolution  pass  the  Congress.  It  would  constitute  a  reversal 
of  our  constitutional  practice,  which  might  lead  to  very  great  confusion  in 
regard  to  the  guidance  of  our  foreign  affairs.  I  am  convinced  that  I  am 
supported  by  every  competent  constitutional  authority  in  the  statement  that 
the  initiative  in  directing  the  relations  of  our  Government  with  foreign  govern- 
ments is  assigned  by  the  Constitution  to  the  Executive,  and  to  the  Executive 
only.''    New  Yorlc  Times,  December  9,  1919. 

^Senate  doc.  56,  p.  2. 

'Judge  Penfield,  in  the  article  previously  quoted,  raises,  without  deciding, 
the  question  as  to  whether  or  not  Congress  is  competent,  by  a  two-thirds  vote 
over  the  President's  veto,  in  the  legitimate  exercise  of  the  legislative  power, 
to  enact  a  statute  having  the  indirect,  but  decisive  and  conclusive  effect  of 
granting  recognition  {Am.  Law  Beview,  XXXII,  408).  As  Congress  has  never 
attempted  to  exercise  such  a  power,  the  probabilities  would  seem  to  be  against 
its  existence. 


128  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

courts.  It  is  true  that,  in  several  cases,  the  judicial  tri- 
bunals have  apparently  conceded  the  power  of  recognition 
to  the  political  departments  of  the  Government,  including 
both  the  legislature  and  the  executive.  Thus  a  few  years 
ago  the  Supreme  Court  declared  that  **what  is  the  de  jure 
government  of  a  country  is  a  strictly  political  and  not  a 
judicial  question  and  the  determination  of  the  question  by 
the  executive  and  legislative  departments  of  the  recognizing 
country  gives  the  courts  of  the  latter  judicial  notice  of  the 
recognition."^  In  other  cases,  however,  the  executive  de- 
4  partment  has  been  distinctly  indicated  as  that  to  which  the 
power  of  recognition  belongs.  Thus  in  an  early  case  Mar- 
shall, on  circuit,  said:  ^* Before  a  nation  could  be  con- 
sidered independent  by  the  judiciary  of  foreign  nations,  it 
was  necessary  that  its  independence  should  be  recognized 
by  the  executive  authority  of  those  nations. '^^  j^  1852 
Chief  Justice  Taney  declared  that  the  question  whether 
Texas  was  or  was  not  an  independent  state  ^^was  a  question 
for  that  department  of  our  government  exclusively  which 
is  charged  with  our  foreign  relations,''  and  the  context 
shows  that  he  meant  the  executive  department.^  In  the 
case  of  the  Itata,  decided  in  1893,  the  circuit  court  of  ap- 
peals held  that  *Hhe  law  is  well  settled  that  it  is  the  duty 
of  the  courts  to  regard  the  status  of  the  [Chilean]  Congres- 
sional party  in  the  same  light  as  they  were  regarded  by  the 
executive  department  of  the  United  States  at  the  time  the 
alleged  offenses  were  committed.''*  It  is  well  settled  that 
the  courts  will  take  judicial  notice  of  recognition  accorded 
by  the  President,  and  in  a  recent  case  the  Supreme  Court 
declared  that  the  decision  of  the  President  in  recognizing 

*Pearcy  v.  Stranahan,  205  U.  S.,  257. 

'United  States  v.  Hutchings,  26  Fed.  Cas.  440;  Fed.  Cas.  No.  15,429  (1817). 
In  United  States  v.  Palmer,  however,  decided  about  the  same  time,  Chief 
Justice  Marshall  referred  to  the  power  as  vested  in  both  of  the  political  de- 
partments (2  Wh.,  643). 

'  Kennett  v.  Chambers,  14  How.,  50. 

*56  Fed.  510.  Cf.  U.  S.  v.  Trumbull,  48  Fed.,  104;  Williams  v.  Suffolk 
Insurance  Co.,  13  Pet.,  415 ;   Jones  v.  United  States,  137  U.  S.,  202. 


THE  POWER  OF  RECOGNITION  129 

the  government  of  Carranza  as  the  de  facto,  and  later  as  the 
de  jure,  government  of  Mexico  ^*  binds  the  judges  as  well  as 
all  the  other  officers  and  citizens  of  the  government/'^ 

REFERENCES 

\  Senate  documents  40  and  56  of  the  54th  Congress,  second  session. 
Berdahl,  C.  A.,  "The  Power  of  Recognition,"  Am.  Jour,  Int.  Law,  XIV, 

519-539  (Oct.,  1920). 
Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 
1917),  71-83. 
iGoebel,  Julius,   Jr.,   "The   Recognition   Policy   of   the   United    States," 
Columbia  University  Studies  in  History,  Economics  and  Public  Law, 
LXVI,  No.  1. 

I  Moore,  J.  B.,  Digest  of  Int.  Law  (Washington,  1906),  I,  sects.  27-75,  espe- 
cially sect.  75. 
Penfield,  W.  L.,  "Recognition  of  a  New  State — Is  It  an  Executive  Func- 
tion?" Am.  Law  Bev.,  XXXII,  390-408  (May-June,  1898). 

»Ricaud  v.  American  Metal  Co.,   246  U.  S.,  304    (1918).     Cf.   Oetjen  v. 
l  Central  Leather  Co.,  246  U.  S.,  297 ;    and  see  E.  D.  Dickinson,  *  *  International 
I  Recognition  and  the  National  Courts,''  MicMgan  Law  Bev.,  XVIII,  531-535 
(April,  1920). 


i 


CHAPTER  Vm 

THE  TREATY-MAKING  POWER :   GENERAL  PRINCIPLES 

IT  has  been  maintained  that  the  Government  of  the  United 
States,  even  in  the  absence  of  any  constitutional  provi- 
sion on  the  subject,  would  have  the  power  to  make  treaties, 
possessing  it  as  an  independent  member  of  the  family  of 
nations  and  '  *  as  an  attribute  of  sovereignty. ' '  ^  In  view, 
however,  of  the  existence  of  a  direct  constitutional  provi- 
sion on  the  subject,  it  is  unnecessary  to  pass  upon  the  ques- 
tion as  to  the  inherence  in  our  government  of  such  an 
extra-constitutional  power.  The  one  provision  of  the  Con- 
stitution relating  to  the  making  of  treaties  is  as  follows : 
'^He  [the  President]  shall  have  power,*  by  and  with  the 
advice  and  consent  of  the  senate,  to  make  treaties,  provided 
two-thirds  of  the  Senators  present  concur.''  ^  It  is  signifi- 
cant that  this  provision  is  found  in  the  article  dealing  with 
the  executive  rather  than  in  that  devoted  to  the  legislative 
branch.  It  was  considered,  however,  that  treaty-making  is 
neither  wholly  executive  nor  legislative  in  character,  but  is 
a  distinct  and  composite  function,  in  which  the  executive 
and  legislative  branches  should  alike  participate.^ 


THE    TEBATY    CLAUSE    IN    THE    CONSTITUTIONAL 
CONVENTION 

During  the  proceedings  of  the  Federal  Convention  the 
Senate  was,  at  first,  given  full  control  of  treaty-making, 

*  Butler,  Treaty-Mdkmg  Power  of  the  U.  S.,  I,  5. 
»Art.  II,  sect.  2,  cl.  2. 

*  Federalist,  No.  75.    This  idea  was  strengthened  by  the  general  favor  with 
which  the  principle  of  checks  and  balances  was  received. 

130 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES    131 

though  near  the  close  of  the  deliberations  this  arrangement 
was  modified  so  as  to  associate  the  President  and  Senate 
together  in  the  performance  of  that  work.  Several  influ- 
ences led  many  members  to  favor  intrusting  the  treaty- 
making  power  to  the  Senate  rather  than  to  the  executive. 
These  were:  (1)  fear  of  the  autocratic  power  which  might 
result  from  placing  this  important  function  in  the  hands  of 
one  man ;  (2)  a  desire  to  depart  from  English  precedent ;  (3) 
the  force  of  practice  under  the  preceding  regime,  when,  for 
lack  of  a  president,  the  Continental  and  Confederate  Con- 
gresses had  directed  the  foreign  relations  of  the  country, 
including  the  work  of  treaty-making;^  and  (4)  the  feeling 
that,  since  the  states  were  prohibited  from  making  treaties, 
some  compensation  should  be  granted  them  by  giving  this 
power  to  their  representatives  in  the  upper  house,  thereby 
protecting  them  against  injury  at  the  hands  of  the  federal 
government  in  its  control  over  foreign  relations.  So  strong 
were  these  influences  that,  during  a  (K)nsiderable  portion  of 
the  session  of  the  convention,  the  power  of  making  treaties 
was  assigned  exclusively  to  the  Senate,^  as  was  also  the 
power  of  appointing  ambassadors.  Had  these  proposals 
been  finally  adopted,  they  would  very  largely  have  taken 
away  from  the  executive  the  control  of  foreign  relations. 
They  were  opposed,  however,  by  some  of  the  leading  men 
in  the  convention..  Madison  observed  that  ^^the  Senate 
represented  the  states  alone,  and  for  this  as  well  as  for 
other  obvious  reasons,  it  was  proper  that  the  President 
should  be  an  agent  in  treaties."^  With  reference  to  the 
proposal  that  the  upper  house  should  appoint  ambassadors, 
'^Gouvemeur  Morris  argued  against  the  appointment  of 
ofiicers  by  the  Senate.  He  considered  that  body  as  too  nu- 
merous for  the  purpose ;  as  subject  to  cabal ;  and  as  devoid 

^It  is  of  course  true  that  these  Congresses  exercised  both  legislative  and 
executive  powers,  but  they  were  primarily  legislative  bodies. 

^Cf.  Pinckney  to  J.  Q.  Adams,  Dec.  30,  1818,  Farrand,  Eecords  of  the 
Federal  Convention,  III,  427.    See  also  ibid.,  II,  169,  183. 

'Farrand,  o]p.  cit.,  II,  392. 


132  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

of  responsibility.''^  These  arguments  prevailed,  and,  as 
finally  decided,  the  President  and  Senate  are  associated 
together  in  both  the  treaty-making  and  appointing  powers. 
This  outcome  was  doubtless  influenced,  too,  by  the  consider- 
ation that  in  this  way  the  exercise  of  these  powers  would 
be  subjected  to  the  principle  of  checks  and  balances. 
"^  An  attempt  was  made  near  the  close  of  the  Convention  to 
associate  the  House  of  Kepresentatives  in  the  treaty-mak- 
ing power,  on  the  ground  that  **as  treaties  are  to  have  the 
operation  of  laws^  they  ought  to  have  the  sanction  of  laws 
also.''^  This  proposal  was  defeated,  however,  on  the 
ground  that '  *  the  necessity  of  secrecy  in  the  case  of  treaties 
forbade  a  reference  of  them  to  the  whole  legislature. '  '^ 
Madison  also  suggested  the  inconvenience  of  requiring  a 
legal  ratification  of  treaties  of  alliance.* 

It  was  not  apparently  thought  by  the  members  of  the 
convention  that  the  association  of  the  Senate  with  the 
President  would  substantially  impair  the  requirement  of 
secrecy.  This  confidence  was  expressed,  and  the  conditions 
necessary  for  success  in  foreign  negotiations  were  admir- 
ably stated,  by  President  Washington  several  years  later 
in  his  message  to  the  House  of  Representatives  on  the  Jay 
treaty,  as  follows : 

^  ^  The  nature  of  foreign  negotiations  requires  caution,  and 
their  success  must  often  depend  on  secrecy ;  and  even  when 
brought  to  a  conclusion  a  full  disclosure  of  all  the  meas- 
ures, demands,  or  eventual  concessions  which  may  have 
been  proposed  or  contemplated  would  be  extremely  im- 
politic ;  for  this  might  have  a  pernicious  influence  on  future 
negotiations,  or  produce  inmiediate  inconveniences,  per- 
haps danger  and  mischief,  in  relation  to  other  powers. 

*  Farrand,  Hecords  of  the  Federal  Convention,  II,  389. 
» Wilson  of  Pa.,  in  Farrand,   II,   538. 

*  Sherman  of  Conn.,  ibid. 

*Ibid.,  II,  392.  The  fact  that  the  term  of  senators  is  three  times  as  long 
as  that  of  members  of  the  lower  house,  enabling  the  Senate  to  give  more 
continuous  attention  to  foreign  affairs  and  to  adopt  and  maintain  a  more 
consistent  foreign  policy,  constitutes  an  additional  reason  why  the  Senate  alone 
should  be  associated  with  the  President  in  treaty-making. 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES     133 

The  necessity  of  such  caution  and  secrecy  was  one  cogent 
reason  for  vesting  the  power  of  making  treaties  in  the  Pres- 
ident, with  the  advice  and  consent  of  the  Senate,  the  prin- 
ciple on  which  that  body  was  formed  confining  it  to  a  small 
number  of  members.  *  ^^ 

The  expectation  of  the  framers  of  the  Constitution  was 
that  the  Senate,  as  a  comparatively  small  body,  would  act 
with  the  President  as  an  executive  council  for  the  purpose 
of  making  treaties  and  confirming  appointments  to  impor- 
tant offices.  It  is  worthy  of  note,  however,  that  the  associa- 
tion of  the  Senate  with  the  President  for  these  purposes 
was  not  in  both  cases  provided  for  in  the  same  language. 
In  the  case  of  appointments,  it  is  provided  that  the  Presi- 
dent *  *  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate  shall  appoint,^'  etc.^  It  is  thus  implied 
that  the  President  has  the  sole  right  of  nomination,  and  that 
the  advice  and  consent  of  the  Senate  operate  only  upon  the 
confirmation  of  the  appointment,  although  the  President 
must  still  issue  the  commission  in  order  to  complete  the 
process.  On  the  other  hand,  the  treaty-making  clause  pro- 
vides that  the  President  ^*  shall  have  power,  by  an(J  with 
the  advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two-thirds  of  the  Senators  present  concur.''  ^  It 
does  not  say  that  the  President  shall  negotiate,  and  by  and 
with  the  advice  and  consent  of  the  Senate  shall  ratify, 
treaties;  the  advice  and  consent  of  the  Senate  apparently 
operate  upon  the  whole  process  of  treaty-making,  including 
negotiation  and  ratification.  It  appears,  however,  from 
contemporary  expositions  of  this  clause  that  the  Senate  was 
not  intended  to  have  an  equal  and  coordinate  share  with  the 
President  in  the  actual  business  of  negotiation.  Thus,  in 
the  Federalist,  Jay  points  out  that 

**It  seldom  happens  in  the  negotiation  of  treaties,  of 
whatever  nature,  but  that  perfect  secrecy  and  immediate 

*  Richardson,  Mess,  and  Pap.  of  the  Presidents^  I,  194-5. 

'Art.  II,  sect.  2,  par.  2. 

'Ibid. 


134  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

dispatch  are  sometimes  requisite.  There  are  cases  where 
the  most  useful  intelligence  may  be  obtained,  if  the  persons 
possessing  it  can  be  relieved  from  apprehensions  of  dis- 
covery. .  .  .  There  doubtless  are  many  .  .  .  who  would 
rely  on  the  secrecy  of  the  President,  but  who  would  not  con- 
fide in  that  of  the  Senate  and  still  less  in  that  of  a  large  pop- 
ular assembly.  The  convention  has  done  well,  therefore,  in 
so  disposing  of  the  power  of  making  treaties,  that  although 
the  President  must,  in  forming  them,  act  by  the  advice  and 
consent  of  the  Senate,  yet  he  will  be  able  to  manage  the 
business  of  intelligence  in  such  a  manner  as  prudence  may 
suggest.*'.*^  ,- 

This  idea  was  seconded  by  Hamilton  in  another  number 
of  the  Federalist,  where  he  says : 

*  *  The  qualities  elsewhere  detailed,  as  indispensable  in  the 
management  of  foreign  negotiations,  point  out  the  execu- 
tive as  the  most  fit  agent  in  those  transactions ;  while  the 
vast  importance  of  the  trust,  and  the  operation  of  treaties 
as  laws,  plead  strongly  for  the  participation  of  the  whole, 
or  a  portion  of  the  legislative  body  in  the  office  of  making 
them/ '2 


STAGES    IN    THE    PROCESS    OF    TREATY-MAKING 

In  considering  the  relative  influence  and  control  wielded 
by  the  President  and  the  Senate  in  treaty-making,  it  is  desir- 
able to  bear  in  mind  the  various  steps  or  stages  commonly 
followed  in  the  process  of  making  treaties.  As  a  rule,  there 
are  four  distinct  steps :  (1)  negotiation,  including  the  advice 
and  consent  of  the  Senate  to  ratification;  (2)  ratification; 
(3)  exchange  of  ratifications;  and  (4)  proclamation. 
Treaties  are  proclaimed  by  the  President  and  are  published 
in  the  Statutes  at  Large  as  a  means  of  officially  acquainting 
the  people  with  their  texts,  which  forthwith  become  parts  of 
the  supreme  law  of  the  land.  Such  proclamation,  however, 
has  no  direct  bearing  on  foreign  relations  and  is  not  neces- 

^  Federalist,  No.  64. 
UMd.,  No.  75. 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES    135 

sary  to  the  validity  of  a  treaty  in  international  law.^  The 
function  of  the  Senate  in  treaty-making  is  popularly  spoken 
of  as  ratification.  But  this  is  an  error.  The  advice  and 
consent  of  the  Senate  is  a  necessary  prerequisite  to  the  rati- 
fication of  a  treaty;  the  act  of  ratification  itself  is  per- 
formed by  the  President  (or  his  agents),  as  is  also  the 
exchange  of  ratifications  with  the  representative  of  the 
foreign  government.^  In  reality,  therefore,  the  President 
alone  fully  controls  the  last  three  steps,^  and  he  and  the 
Senate  are  associated  together  in  the  first  step  only,  i.e., 
negotiation.  This  limitation  of  the  Senate's  authority  to 
the  first  stage  is  not  expressly  set  up  by  the  Constitution, 
but  is  brought  about  in  part  through  international  usage 
and  diplomatic  practice  in  treaty-making,  and  in  part 
through  the  implications  of  certain  provisions  of  the  Con- 
stitution, other  than  the  treaty-making  clause,  which  com- 
bine to  make  the  President  the  spokesman  of  the  nation  in 
foreign  relations.  These  causes,  in  turn,  rest  upon  funda- 
mental differences  in  organization  between  the  executive 
and  the  legislature,  or  the  upper  branch  thereof. 

It  should  be  noted,  however,  that  treaties  sometimes  con- 
tain a  provision  which  purports  to  place  a  limit  upon  the 
time  within  which  they  may  be  ratified  and  the  ratifications 
may  be  exchanged.  If  this  limit  is  not  observed,  it  is  the 
usual,  though  not  invariable,  practice  to  secure  the  consent 
of  the  Senate  to  an  extension  of  the  period.  Instructions 
to  American  diplomatic  officers  charged  with  the  negotia- 
tion of  treaties  are  to  the  effect  that  ratification  should  be 

*The  issuance  of  the  proclamation  is  a  mere  ministerial  act  which  follows 
as  a  matter  of  course  after  the  first  three  stages  have  been  completed,  although 
it  is  not  compellable  by  mandamus. 

'  The  fact  that  the  President  ratifies  treaties  is  often  lost  sight  of  even  by 
writers  on  international  law.  Thus,  A.  S.  Hershey  says:  ''Of  course  there 
has  never  been  any  question  of  the  right  to  refuse  ratification  in  the  case 
of  States  in  which,  like  the  United  States,  the  power  of  negotiation  and  ratifica- 
tion are  in  different  hands."  Essentials  of  International  Public  Law,  p.  315, 
n.  16. 

•  Except,  of  course,  that  the  consent  of  the  foreign  government  must  be 
had  to  the  exchange  of  ratifications. 


136  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

promised,  not  within  a  given  time,  but  only  as  soon  as 
possible.  This  rule  has  been  usually,  though  not  invariably, 
followed.^ 

It  might  be  thought,  at  first  sight,  that  since  it  would 
manifestly  be  a  usurpation  of  power  for  the  Senate  to 
engage  in  the  conduct  of  diplomatic  correspondence,  that 
body  can  not  participate  with  the  President  in  the  negotia- 
tion of  a  treaty.  If  by  negotiation  we  mean  the  actual  con- 
duct of  pourparlers  between  the  representatives  of  the  two 
governments,  this  is  true.  It  was  in  this  narrow  sense  that 
Senator  Spooner  used  the  term  when,  in  his  debate  in  the 
Senate  with  Senator  Bacon  in  1906,  he  said:  ^^From  the 
foundation  of  the  government,  it  has  been  conceded  in  prac- 
tice and  in  theory  that  the  Constitution  vests  the  power  of 
negotiation  .  .  .  exclusively  in  the  President. ' '  ^  Senator 
Bacon  admitted  that  **  undoubtedly  the  power  to  negotiate 
within  that  narrow  limit  is  one  which  can  only  be  exercised 
by  the  President,  because  he  alone  under  this  clause  can 
have  direct  communication  with  the  foreign  power.  *'  But 
the  term  negotiation  may  be  used  in  a  broader  sense,  as 
embracing  all  acts  of  the  proper  governmental  authorities 
from  the  initiation  of  the  project  of  a  treaty  until  its  ratifi- 
cation by  the  President.  In  this  sense  the  term  **  negotia- 
tion*' is  practically  equivalent  to  the  ^'making*'  of  treaties, 
and  it  embraces  not  only  the  pourparlers  incident  to  the 
framing  of  the  terms  but  also  the  action  of  the  Senate  in 
advising  and  consenting  to  ratification.  In  this  broader 
sense  the  process  of  negotiating  a  treaty  may  be  divided 

*Cf.  Crandall,  Treaty  Making  Power,  89-92.  An  attempt  was  made  by 
Senator  Brandegee  to  amend  the  Senate  resolution  advising  and  consenting 
to  the  ratification  of  the  treaty  of  peace  with  Germany  by  requiring  that,  as  a 
part  and  condition  of  the  resolution  of  ratification,  the  instrument  of  ratifica- 
tion should  be  deposited  within  ninety  days  after  the  adoption  of  the  resolution 
by  the  Senate.  The  amendment  was  rejected,  however,  by  a  vote  of  41  to  42. 
See  Congressional  Eecord,  March  19,  1920,  vol.  59,  pp.  4890,  4895.  This 
proposed  amendment  raised  the  question  whether  the  Senate 's  power  of  suggest- 
ing amendments  should  not  properly  be  limited  to  the  substance  of  the  treaty, 
80  as  not  to  extend  to  an  attempted  control  over  the  discretion  of  the  President 
in  matters  of  procedure  connected  with  putting  the  treaty  into  effect. 

^Quoted  in  Corwin,  President's  Control  of  Foreign  Eelations,  170-1. 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES    137^ 

into  two  stages  or  sets  of  operations,  the  first  extending 
from  the  initiation  of  the  project  up  to  the  act  of  attaching 
their  signatures  by  the  representatives  of  the  contracting 
parties;  the  second  extending  from  this  step  to  ratification 
by  the  President.  The  first  stage  may  be  called  prelim- 
inary negotiations,  and  the  second,  especially  if  the  Senate 
proposes  amendments,  may  be  termed  supplementary 
negotiations. 

There  are  two  views  as  to  the  rights  of  the  Senate  in 
treaty-making.  The  first  is  that  the  rights  of  that  body 
extend  to  both  of  the  two  stages  as  described  above;  the 
second  is  that  these  rights  are  restricted  to  the  second  of 
the  two  stages.  The  first  view  was  supported  by  Senator 
Bacon  in  his  debate  with  Senator  Spooner  in  1906.  The 
functions  of  the  Senate,  he  maintained,  are  not  confined 
merely  to  answering  *yes'  or  ^no'  to  the  proposition  sub- 
mitted by  the  President.  ^*0n  the  contrary  ...  in  the 
making  of  treaties  it  is  proper  for  the  Senate  to  advise  at 
all  stages.  .  .  .  We  do  not  advise  men  after  they  have 
made  up  their  minds  and  after  they  have  acted ;  we  advise 
men  while  they  are  considering,  while  they  are  deliberating, 
and  before  they  have  determined  and  before  they  have 
acted. '  '^  The  same  view  was  taken  by  Senator  La  Follette 
in  the  debate  in  the  Senate  in  1919  on  the  Treaty  of  Ver- 
sailles. *  *  It  is  idle, '  *  he  declared,  *  *  to  say  that  the  Constitu- 
tion means  that  the  President  should  advise  with  the  Senate 
after  the  treaty  has  been  put  in  final  form,  and  has  been 
duly  signed  by  the  accredited  delegates  to  the  peace  con- 
ference. '  '2 

On  the  other  hand,  it  has  been  held  that  the  Senate  can 
participate  in  the  negotiations  only  after  the  signature  of 
the  treaty,  which,  until  ratified  by  the  President,  is  still 
technically  a  mere  project.  Thus,  Senator  Lodge  says: 
'^The  right  of  the  Senate  to  amend  has  always  been  freely 

*0p.  cit.,  p.  181;  North  American  Beview,  CLXXXII,  506. 
'Cong.  Record,  Nov,  6,  1919,  vol.  58,  p.  8481. 


138  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

used  at  all  periods  of  our  history  and  of  course  will  con- 
tinue to  be  exercised,  because  it  is  the  only  method  by  which 
the  Senate  can  take  part  in  the  negotiations,  as  the  Consti- 
tution intended  it  to  do.'^  ^  That  the  action  of  the  Senate 
in  passing  on  a  treaty  submitted  to  it  by  the  President  may 
be  considered  as  one  phase  of  the  negotiation  of  the  treaty 
is  also  maintained  by  other  authorities.  Thus,  Senator 
Bacon,  in  the  debate  referred  to,  put  the  following  rhetori- 
cal question:  **When  the  Senate  has  amended  a  proposed 
treaty  and  the  President  thereafter  submits  the  amendment 
to  the  foreign  power  for  its  consideration,  has  not  the 
Senate  taken  part  in  the  negotiation  of  that  treaty  V^  ^  This 
point  of  view  is  clearly  taken  by  John  W.  Foster  in  his 
*' Practice  of  Diplomacy^': 

** While,''  he  says,  ^^the  negotiation  of  treaties  is  con- 
ducted by  or  under  the  direction  of  the  secretary  of  state, 
such  negotiation  cannot  properly  be  said  to  be  concluded 
until  the  'advice  of  the  senate'  is  obtained,  which,  as  noted, 
is  sometimes  secured  in  advance,  but  usually  not  until  the 
treaty  is  submitted  to  the  Senate  for  ratification.  That 
body  being  made  by  the  Constitution  a  part  of  the  treaty- 
making  power,  the  amendments  which  it  may  see  proper  to 
submit  for  the  consideration  of  the  foreign  government 
which  is  a  party  to  the  proposed  treaty  are  as  much  a  stage 
of  the  negotiations  as  the  preceding  action  of  the  secretary 
of  state. ' '  ^ 

In  reality,  there  is  no  necessary  conflict  between  the 
apparently  opposing  views  here  presented.  One  group  of 
writers  are  speaking  of  practical  influence,  while  the  other 
have  in  mind  rather  legal  control.  The  Senate  may  exer- 
cise influence  through  its  advice  at  all  stages  in  the  process 
of  treaty-making.  As  a  rule,  however,  the  more  important 
power  of  the  Senate  is  not  the  giving  of  advice,  but  the 
granting  or  withholding  of  consent.     The  advice  of  the 

^Scrihner's  Magazine,  XXXIV,  548.  Cf.  the  statement  of  the  same  writer, 
ibid.,  XXXI,  41:  ''Senate  amendments  are  simply  a  continuance  of  the 
negotiation  begun  by  the  President." 

^  Corwin,  op.  cit.,  189. 

•  Op.  cit.,  276-7. 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES    139 

Senate  is  not,  of  itself,  more  weighty  than  would  be  that  of 
any  other  body  similarly  constituted.  But  such  advice 
derives  weight  from  the  fact  that  the  Senate 's  consent  must 
be  secured  before  a  treaty  can  be  completed.  The  Senate 
may  tender  its  advice  before  the  conclusion  of  the  treaty, 
and  the  President  may  or  may  not  be  influenced  by  it.^  The 
Senate's  function  in  consenting  to  a  proposed  treaty  or  in 
withholding  its  consent,  however,  must  be  respected  by  the 
President  ;^  for  the  action  of  the  Senate  in  this  matter  has, 
of  course,  a  legal  effect  upon  the  validity  of  the  treaty. 
From  the  legal  point  of  view,  therefore,  the  Senate  can 
exercise  control  through  its  consent  or  non-consent  during 
the  supplementary  negotiations  only.  But  from  the  prac- 
tical point  of  view  it  may  happen  that  the  advice  of  the 
Senate,  even  when  tendered  during  the  preliminary  negotia- 
tions has  controlling  weight. 

Such  practical  control  may  operate  either  positively  or 
negatively.  If  the  fact  that  the  Senate  was  not  consulted 
during  the  preliminary  negotiations  has  an  appreciable 
effect  in  inducing  that  body  to  reject  a  treaty — or  to  pro- 
pose unacceptable  amendments,  whereas  it  would  otherwise 
have  approved  without  such  amendments — ^it  may  reason- 
ably be  maintained  that  some  practical  control,  even  though 
indirect,  is  exercised  by  the  Senate  over  the  first  stage  in 
the  process  of  negotiation.  The  power  of  the  Senate  to 
reject  a  treaty,  or  to  propose  amendments  thereto  after  the 
instrument  has  been  submitted  to  that  body,  may  thus  en- 
able it  to  exert  a  retroactive  control  to  a  certain  degree  over 
the  preliminary  negotiations. 

*As  was  said  in  a  Senate  report:  ''The  initiative  lies  with  the  President. 
He  can  negotiate  such  treaties  as  may  seem  to  him  wise,  and  propose  them  to 
the  Senate  for  the  advice  and  consent  of  that  body,  which  is  as  free  and  inde- 
pendent in  its  action  upon  the  same  as  the  President  is  in  exercising  his  power 
of  initiation  and  negotiation.  .  .  .  Whether  he  will  negotiate  a  treaty  and 
when  and  what  its  terms  shall  be,  are  matters  committed  by  the  Constitution 
entirely  to  the  discretion  of  the  President. ' '  Rept.  of  Senate  Foreign  Relations 
Committee,  Dec.  15,  1902,  Senate  doc.  47,  57th  Cong.,  2d  sess.,  p.  2. 

^President  Roosevelt,  however,  carried  through  by  executive  action  an  agree- 
ment with  Santo  Domingo,  whose  substance  had  been  rejected  by  the  Senate 
when  embodied  in  treaty  form. 


140  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

PEECEDENTS    ESTABLISHED    BY    WASHINGTON 

These  considerations  indicate  that  (as  Jefferson,  while 
secretary  of  state,  advised  President  Washington),  since 
the  approval  of  the  Senate  must  finally  be  secured,  that 
body  should,  where  not  incompatible  with  public  interests, 
be  consulted  before  the  opening  of  negotiations.^  Wash- 
ington followed  this  advice,  and  from  the  practice  of  his 
administrations  farther  light  may  be  obtained  upon  the 
interpretation  of  the  treaty-making  clause  with  reference 
to  the  control  of  negotiation.  At  the  outset  of  his  first 
administration  Washington  evidently  considered  it  desir- 
able to  secure  the  sanction  or  approval  of  the  Senate  during 
the  stage  of  treaty-making  pertaining  to  the  preliminaries 
of  negotiation.  He  also  deemed  it  expedient  that  this  ap- 
proval should  be  secured  by  oral,  rather  than  by  written, 
communication.  Therefore  in  1789,  less  than  four  months 
after  his  inauguration,  he  appeared  in  the  chamber  of  the 
Senate,  pursuant  to  notice,  *Ho  advise  with  them  on  the 
terms  of  the  treaty  to  be  negotiated  with  the  Southern 
Indians. ''  ^  It  will  be  noted  that  this  was  not  a  treaty  which 
had  been  negotiated,  and  for  whose  ratification  the  Presi- 
dent  desired  the  advice  and  consent  of  the  Senate,  but  was, 
rather,  a  mere  project  of  a  treaty  which  was  still  to  be 
negotiated.  In  other  words,  the  President  was  consulting 
the  Senate,  through  personal  interview,  in  order  to  secure 
its  advice  while  the  negotiations  were  still  incomplete,  and 
indeed  not  even  begun.^ 

Washington's  reasons  and  motives  in  consulting  with  the 
Senate  in  person  in  regard  to  treaties  were  stated  by  him- 
self as  follows : 

^Jefferson's  Writings  (Ford  ed.),  V,  442.  From  this  it  follows  that  the 
Senate  should  also  be  consulted  during  negotiations. 

*  1  Annals  of  Cong.,  Col.  67 :  1  Executive  Journal,  20. 

•  They  had  probably  not  yet  begun,  since  the  commissioners  nominated  by  the 
President  to  negotiate  the  treaty  had  only  a  day  or  two  before  been  confirmed 
by  the  Senate.    1  Annals  of  Cong.,  Cols.  65  and  67. 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES    141 

**In  all  matters  respecting  treaties,  oral  communications 
seem  indispensably  necessary,  because  in  these  a  variety  of 
matters  are  contained,  all  of  which  not  only  require  con- 
sideration, but  some  may  undergo  much  discussion,  to  do 
which  by  written  communications  would  be  tedious  without 
being  satisfactory.'*  ^ 

The  question  naturally  arises  why,  if  Washington  con- 
sidered oral  communications  so  superior  to  written  ones  in 
consulting  the  Senate  in  treaty-making,  he  did  not  again 
make  use  of  that  method  during  his  administrations,  and 
why  no  subsequent  President  ever  appeared  in  the  Senate 
chamber  to  communicate  with  that  body  in  regard  to  a 
treaty  until  the  time  of  Wilson,  and  then  only  for  the  pur- 
pose of  delivering  a  formal  address.^  The  reason  assigned 
is  that  Washington  found  his  one  experience  unsatisfactory 
and  therefore  did  not  repeat  it.  But  in  what  particular,  or 
on  what  ground,  he  found  it  unsatisfactory  is  not  usually 
specified. 

The  explanation  is  to  be  found  in  an  incident  which 
occurred  during  the  President's  first  visit  to  the  Senate. 
A  written  statement  was  read  to  the  Senate  containing  a 
recital  of  facts,  together  with  seven  questions  regarding  the 
terms  of  the  treaty  on  which  advice  and  consent  was  asked. 
After  two  of  these  questions  had  been  put,  Senator  Maclay 
of  Pennsylvania  moved  that  the  matter  be  referred  to  a 
committee.^  Thereupon,  as  Maclay  records  in  his  journal, 
the  President  started  up  in  a  violent  fret,  declaring  **this 
defeats  every  purpose  of  my  coming  here."  ^  Nevertheless 
the  motion  was  carried  and  the  matter  was  committed.^ 
Thus  on  the  first  occasion  when  the  question  arose,  the 
Senate  chose  to  adopt  a  course  of  action  which  was  suitable 

*  Washington's  Writings,  XI,  417;  quoted  by  Foster,  Practice  of  Dip.,  264. 

'See  Cong.  Record,  July  10,  1919.  President  Wilson  had,  however,  appeared 
before  the  Senate  on  January  22,  1917,  and  delivered  an  address  on  the  essen- 
tial terms  of  peace. 

'  Maclay 's  Journal,  130. 

*Ihid.,  131.    Cf.  J.  Q.  Adams,  Memoirs,  VI,  427. 

» 1  Ex.  Jour.,  22,  23. 


142  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

for  a  legislative  body,  but  not  suitable  for  an  executive 
council,  in  which  capacity  the  Senate  was  intended  to  act  in 
dealing  with  treaties.  Maclay's  reason  for  making  the 
motion  to  commit  is  stated  by  himself  as  follows:  ** Com- 
mitment will  bring  the  matter  to  discussion,  at  least  in  the 
committee,  when  he  [the  Presidenf]  is  not  present/^  ^  Thus 
it  was  intended  that  the  President  should  not  participate  in 
the  real  discussion  through  which  the  Senate  should  reach 
its  conclusion,  and  that  he  should  be  present  only  when  the 
Senate  was  prepared  to  answer  his  questions  by  categorical 
answers. 

The  Senate  thus  chose  to  proceed  on  the  theory  that  in 
advising  and  consenting  to  the  ratification  of  treaties  it  is 
acting  in  its  representative  capacity,  rather  than  as  an 
executive  council.^  It  would  seem  that,  by  the  adoption  of 
this  course,  it  largely  destroyed  the  possibility  of  real  con- 
sultation between  it  and  the  President  in  treaty  matters.^ 
Although  the  relations  between  the  President  and  the 
Senate  were  closer,  and  probably  more  cordial,  in  this  early 
period  than  they  have  been  during  most  of  our  national 
history,  evidences  are  discernible  that  even  at  that  time  a 
certain  jealousy  and  distrust,  and  a  determination  to  main- 
tain rigidly  their  respective  powers  and  prerogatives  in 
treaty-making,  were  growing  up  between  the  President  and 
the  Senate.  Thus,  Maclay  remarks,  *  ^  The  President  wishes 
to  tread  on  the  necks  of  the  Senate.  ...  He  wishes  us  to 
see  with  the  eyes  and  hear  with  the  ears  of  his  secretary 

*  Maclay 's  Journal,  131.     Italics  are  mine. 

*For  this  course  it  may  find  partial  justification  in  the  fact  that,  under  the 
Constitution,  treaties,  when  proclaimed  by  the  President,  become  part  of  the 
law  of  the  land. 

'As  Woodrow  Wilson  many  years  later  pointed  out:  ''Argument  and  an 
unobstructed  interchange  of  views  upon  a  ground  of  absolute  equality  are  es- 
sential parts  of  the  substance  of  genuine  consultation.  The  Senate,  when  it 
closes  its  doors,  upon  going  into  'executive  session,'  closes  them  upon  the 
President  as  much  as  upon  the  rest  of  the  world.  He  cannot  meet  their 
objections  to  his  courses  except  through  the  clogged  and  inadequate  channels 
of  a  written  message  or  through  the  friendly  but  unauthoritative  oflaees  of  some 
Senator  who  may  volunteer  his  active  support."  Congressional  Government 
(Boston,  1885),  233. 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES     143 

only.  The  secretary  to  advance  the  premises,  the  President 
to  draw  the  conclusions,  and  to  bear  down  our  deliberations 
with  his  personal  authority  and  presence.  Form  only  will 
be  left  us. ''1 

FUNDAMENTAL    CONDITIONS    OF    TREATY-MAKING 

The  Constitution's  framers  did  not  desire  to  make  treaty- 
making  unduly  easy.^  Hence  they  associated  together  two 
independent  authorities  whose  concurrence  must  be  secured 
before  a  treaty  can  be  completed.  This  arrangement  almost 
inevitably  gives  rise  to  occasional  friction ;  and  even  when 
there  is  harmony  between  the  President  and  a  majority  of 
the  Senate,  the  two-thirds  requirement  may  enable  a  minor- 
ity to  block  action.  These  obstacles  may  be  overcome  if  the 
political  party  to  which  the  President  belongs  controls  a 
large  majority  in  the  Senate.  Even  though  this  is  not  the 
case,  they  may  be  overcome  at  times  by  cautious  and  con- 
ciliatory action.  Thus,  Daniel  Webster,  when  secretary  of 
state,  negotiated  the  Ashburton  Treaty,  and,  by  keeping  the 
principal  senators  informed  as  to  the  various  steps  in  the 
negotiation,  was  enabled  to  secure  the  Senate's  advice  and 
consent  to  ratification,  even  though  the  majority  of  that 
body  was  opposed  to  the  President  politically.^ 

When,  as  in  treaty-making,  the  exercise  of  a  power  is 
entrusted  to  two  independent  authorities  whose  concurrence 
must  be  secured  before  the  power  can  be  fully  brought  into 
play,  it  follows  that  the  degree  of  control  which  each  author- 
ity can  exercise  will,  within  constitutional  limits,  depend 
largely  upon  the  eJBficiency  of  the  two  in  using  their  respec- 

^Maclay's  Journal,  131. 

'  Cf .  Madison  in  Farrand,  Becords  of  Federal  Convention,  II,  548. 

'J.  W.  Foster,  "The  Treaty-Making  Power  under  the  Constitution,"  TaXe 
Law  Journal,  XI,  71  (Dec,  1901).  A  secretary  of  state  is  more  likely  to  be 
proficient  in  conciliating  the  Senate  if  he  has  himself  seen  service  in  that  body, 
and  it  may  be  that,  as  Reinsch  points  out,  the  fact  that,  of  late  years,  our 
secretaries  of  state  have  not  usually  had  previous  senatorial  experience,  accounts 
for  some  of  the  difficulties  encountered  in  treaty-making.  Am.  Legislatures  and 
Legislative  Methods,  95. 


144  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tive  shares  of  the  power;  and  inasmuch  as  such  efficiency 
will  vary  from  time  to  time,  the  degree  of  control  which 
each  will  wield  over  the  exercise  of  the  power  in  question 
will  also  vary.  Since,  however,  the  working  efficiency  of 
any  governmental  agency  is  largely  dependent  upon  the 
adaptability  of  its  organization  to  the  purpose  in  hand,  it  is 
possible  to  arrive  at  conclusions  which  will  be  generally 
true  as  to  the  respective  control  of  the  President  and  Senate 
in  treaty-making. 

Although,  as  already  indicated,  Washington  did  not  again 
consult  the  Senate  in  person  in  regard  to  treaties,  he  fre- 
quently took  that  body  into  his  confidence  through  written 
communications  with  regard  to  proposed  or  pending 
treaties.  But  in  the  case  of  the  most  important  treaty  of 
his  administrations,  the  Jay  Treaty  with  Great  Britain,  he 
does  not  seem  to  have  followed  this  practice.  After  his 
time  the  custom  of  consulting  the  Senate  as  a  body 
prior  to  laying  before  it  the  completed  draft  of  a  treaty 
fell  into  disuse,  although  occasional  recurrences  of  it  may 
be  found.^  With  the  admission  of  new  states,  the  size  of 
the  Senate  so  increased  that  it  became  less  and  less  suitable 
to  act  as  an  executive  council,  even  had  it  desired  to  do  so. 
As  we  have  seen,  the  House  of  Representatives  was  ex- 
cluded from  participation  in  the  treaty-making  power 
largely  because  its  size  would  render  it  practically  impos- 
sible to  secure  in  all  cases  that  *^ secrecy  and  dispatch'' 
which  were  considered  necessary  to  success  in  treaty-mak- 
ing. Yet  the  House  of  Representatives  had  at  first  con- 
siderably fewer  members  than  has  the  Senate  at  the  present 
time.  The  question  might,  therefore,  be  asked  whether, 
had  the  Constitution 's  makers  known  that  the  Senate  would 
become  as  large  as  it  now  is,  they  would  have  associated 
it  in  the  treaty-making  power.     To  this  question  no  certain 

*Thus  Presidents  Jackson  and  Polk,  in  1830  and  1846  respectively,  sought 
the  advice  of  the  Senate  on  proposed  treaties.  Other  examples  are  given  in 
Crandall,  op.  cit.,  70-72.  Cf.  Senator  Lodge  in  Scribner's  Magazine,  XXXI, 
39-40  (Jan.,  1902). 


I 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES    145 

answer  can  be  given;  for  considerations — ^perhaps  even 
more  important  in  the  f ramers '  minds — other  than  the  size 
of  the  upper  house  caused  it  to  be  associated  in  the  exercise 
of  this  power.  Nevertheless,  the  size  of  the  Senate  nowa- 
days has  some  influence  towards  making  that  body  a  deliber- 
ate as  well  as  a  deliberative  institution ;  so  that  when  quick 
action  is  desired,  the  President  may  feel  that  the  public 
interest  will  be  best  conserved  by  not  consulting  the  Senate 
at  SilU 

As  a  matter  of  fact,  secrecy  is  not  now  considered  so 
highly  desirable  as  formerly^lmd  the  Senate  has  considered 
some  treaties  in  open  executive  session.  Even,  however, 
when  secrecy  is  admittedly  desirable,  and  when  a  proposed 
treaty  is  considered  behind  closed  doors,  substantially  ac- 
curate accounts  of  what  takes  place  are  frequently  pub- 
lished. These  facts  have  doubtless  had  some  weight  in 
causing  Presidents  to  hesitate  to  ask  the  advice  of  the 
Senate  pending  negotiations.  It  is,  of  course,  true  that 
the  President  does  not  have  to  act  in  accordance  with  the 
advice  of  the  Senate  when  asked  and  given,  although  he 
would  hardly  fail  to  do  so  except  for  weighty  reasons. 
Moreover,  he  is  likely  to  feel  under  some  obligation,  after 
having  asked  the  Senate 's  advice,  to  wait  until  he  receives 
a  response  before  taking  action  which  may  not  be  in  con- 
formity with  the  advice  given,  even  though  such  delay  may 
prove  prejudicial  to  the  success  of  the  negotiations.  Rather 
than  run  the  risk  of  undergoing  such  inconvenience,  the 
President  may  refrain  from  requesting  the  Senate 's  advice 
until  the  signed  draft  of  the  proposed  treaty  is  ready  to  be 
laid  before  that  body. 

*  The  dilatoriness  of  the  Senate  was  illustrated  when,  in  Dec,  1861,  President 
Lincoln  submitted  the  project  of  a  treaty  with  Mexico.  Almost  three  months 
later  a  resolution  was  adopted  to  the  effect  that  **it  is  not  advisable  to  negotiate 
a  treaty  that  will  require  the  United  States  to  assume  any  portion  of  the  .  .  . 
debt  of  Mexico."  Before  our  minister  to  Mexico  could  be  apprised  of  thia 
resolution  he,  however,  had  already,  in  view  of  the  important  events  occurring 
there,  signed  treaties  which  had  been  ratified  by  Mexico,  but  which  contravened 
the  spirit  of  the  Senate  resolution.  Kichardson,  Mess,  and  Pap.  of  the  Presi- 
dents, VI,  81-2.    This  was  not  an  extreme  case. 


146  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Thus,  desirable  ''secrecy  and  dispatch''  in  foreign  ne- 
gotiations may  be  defeated  by  the  size  and  dilatoriness  of 
the  Senate.     In  so  far  as  they  are  clearly  desirable,  the 
President  is  the  more  efficient  authority,  and  control  of  J 
treaty  negotiations  therefore  tends,  to  this  extent,  to  grav- 
itate into  his  hands.     These,  however,  are  not  the  only 
desirable  conditions  of  the  successful  conduct  of  negotia- 
tions.    Caution  and  circumspection  in  weighing  the  effects 
of  a  treaty,  both  immediate  and  remote,  in  relation  to  the   j 
protection  of  the  interests  of  the  whole  country  are  also    | 
desirable,  and  from  this  point  of  view  the  action  of  the 
Senate  may  be  more  efficient  than  that  of  the  President. 

In  giving  its  advice  the  Senate  does  not  have  to  await  a 
request  from  the  President,  and  instances  have  occurred  in 
which  that  body  has,  on  its  own  initiative,  advised  the  Pres- 
ident to  open  negotiations.^  Such  initiative  has  also  some- 
times been  taken  by  act  of  Congress.^ 

The  advice  given,  however,  need  not  be  acted  upon ;  for 
the  President  is  completely  in  control  of  actual  negotiations, 
in  the  sense  of  the  conduct  of  pourparlers  with  the  repre- 
sentatives of  foreign  governments.^     The  Senate  has  no 

*Thus,  by  simple  resolution  of  March  3,  1835,  adopted  in  executive  session, 
the  Senate  requested  the  President  to  open  negotiations  with  Central  American 
countries  looking  toward  the  construction  of  an  interoceanic  canal.  H.  C. 
Lodge,  in  Scribner  's  Mag.,  XXXI,  40.  Cf .  the  resolution  of  March  3, 1888,  ihid., 
p.  42,  and  see  Bigelow,  Breaches  of  Anglo-American  Treaties,  73.  Again,  by  a 
Sen.  Jt.  Ees.  approved  Apr.  8,  1904,  the  President  was  requested  to  negotiate 
and,  if  possible,  conclude  negotiations  with  Great  Britain  for  a  review  and 
revision  of  the  rules  and  regulations  governing  the  taking  oi  fur  seals  in  the 
Bering  Sea.  Cong.  Eecord,  vol.  38,  p.  4673;  House  Rept.  2076,  58  C.  2  S.;  33 
Stat,  at  L.,  pt.  1,  p.  586.  In  suggesting  negotiations  the  Senate  does  not  usually 
undertake  in  advance  to  specify  in  detail  the  terms  of  the  treaty  to  be  drafted. 
But  the  President  may  consult  with  the  Senate  or  with  individual  Senators  in- 
formally regarding  the  details  of  a  treaty.  The  Senate  may  also,  by  resolution, 
advise  the  President  not  to  negotiate  a  particular  treaty,  or  a  treaty  of  a 
given  character,  as  was  done  on  Feb.  25,  1862;  and,  if  the  resolution  were 
passed  by  more  than  a  two-thirds  vote,  it  would  doubtless  effectively  stop 
action.    Lodge,  in  Scribner*s  Mag.,  XXXI,  37. 

^  Thus  by  an  act  approved  June  28,  1902,  the  President  was  authorized  to 
enter  into  treaty  negotiations  with  the  Republic  of  Colombia  for  the  purpose  of 
securing  control  of  the  Isthmian  Canal  Zone.    32  Stat,  at  L.,  pp.  481-2. 

'  In  1835  President  Jackson  vetoed  an  act  of  Congress  on  the  ground  that  it 
was  "obviously  founded  on  the  assumption  that  an  act  of  Congress  can  give 
power  to  the  Executive  or  to  the  head  of  one  of  the  departments  to  negotiate 


TREATY-MAKING  POWER:  GENERAL  PRINCIPLES     147 

right  to  conduct  diplomatic  correspondence,  nor  is  the  Pres- 
ident the  mere  ministerial  agent  of  that  body  in  conducting 
such  correspondence.  None  the  less,  its  advice  may  be  in- 
fluential in  inducing  the  President  to  undertake  a  particular 
negotiation.  Even  the  House  of  Representatives  may,  on 
its  own  initiative,  advise  the  President  to  undertake  negoti- 
ations.^ Whatever  weight  the  House  of  Eepresentatives 
has  in  the  negotiation  of  treaties  is  largely  due  to  its 
control  over  appropriations  necessary  to  pay  the  expenses 
of  the  negotiations.  This  power  of  the  House,  however,  is 
not  of  as  much  consequence  as  it  might  seem,  because  special 
appropriations  are  not  usually  necessary.  Finally,  the 
two  branches  of  Congress,  acting  as  a  legislative  body,  may 
attempt  to  exercise  an  influence  upon  the  negotiation  of 
treaties  by  appropriating,  or  by  failing  or  refusing  to  ap- 
propriate, the  funds  necessary  for  the  support  and  expenses 
of  the  commissioners  appointed  by  the'  President  for  the 
purpose  of  conducting  the  negotiations.^    If  the  appropria- 

with  a  foreign  government  .  .  .  the  Executive  has  competent  authority  to 
negotiate  .  .  .  with  a  foreign  government — an  authority  Congress  cannot  con- 
stitutionally abridge  or  increase.''  Eichardson,  Mess,  and  Pap.  of  the  Presi- 
dents, III,  146. 

*  Thus,  by  a  provision  contained  in  the  sundry  civil  bill  passed  Aug.  7,  1882, 
the  sum  of  $20,000  was  appropriated  to  pay  the  expenses  of  a  commission  to 
negotiate  a  reciprocity  treaty  with  Mexico,  whiclx  was  accordingly  done.  House 
Kept.  2615,  49th  Cong.,  1st  sess.,  p.  15.  In  the  minority  report  of  the  Ways 
and  Means  Committee  on  the  treaty  as  negotiated  it  was  stated  that  *'The 
right  of  Congress  to  enact  this  legislation  is  found  in  the  clause  of  the  Consti- 
tution which  confides  to  it  the  regulation  of  commerce."  Again,  the  House 
alone  has  sometimes  requested  the  President  to  negotiate  a  treaty  (Hinds, 
Precedents,  II,  985,  986,  988).  The  House  also  requested  the  President  not  to 
negotiate  a  treaty  {ibid.,  988).  A  call  by  the  House  for  papers  regarding  the 
negotiation  of  a  treaty  was  complied  with  by  President  Jackson,  but  was  not 
to  be  considered  a  precedent  {ibid.,  1003).  Congress,  on  another  occasion, 
attempted  to  limit  the  time  within  which  treaties  should  be  negotiated  and 
ratified  {ibid.,  1001). 

'In  this  connection  it  may  be  noted  that  by  an  act  of  March  3,  1871,  Con- 
gress forbade  the  treaty-making  agencies  thereafter  to  deal  with  the  Indian 
tribes  as  if  they  were  independent  nations;  and  the  tribes  have  since  been 
dealt  with  through  domestic  Executive  and  Legislative  authority  (16  Stat,  at 
L.,  566,  R.  S.  sect.  2079).  It  is  significant  that  this  provision  was  contained  in 
an  appropriation  act,  which  suggests  that  its  practical  enforceability  rests  upon 
the  power  of  Congress  to  withhold  appropriations  to  enforce  Indian  treaties. 
The  Supreme  Court  had  held  that  an  Indian  nation  was  a  community  with 
which  the  United  States  could  enter  into  treaty  relations.  Worcester  v.  Georgia, 
6  Pet.,  515. 


148  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tion  is  made,  the  consent  of  Congress  to  the  negotiations  is 
thereby  given.  The  negotiations  might  be  undertaken  with- 
out such  consent;  but  the  enactment  of  an  appropriation 
bill  gives  the  President  the  moral  support  of  the  two  houses, 
without  which  he  might  hesitate  to  proceed.^ 


[For  References,  see  p.  167.] 

*  As  indicated,  however,  in  Chapter  IV,  a  special  appropriation  for  the  nego- 
tiation of  a  treaty  is  not  usually  necessary,  since  the  President  may  utilize 
the  regular  diplomatic  representatives,  or  may  appoint  special  agents  and  pay 
them  out  of  the  contingent  fund  for  foreign  intercourse.  In  the  case  of  secret 
agents,  he  may  pay  them  on  presidential  receipts  or  certificates,  without 
vouchers  specifically  accounting  for  such  expenditure.    B.  S.  sect.  291. 


CHAPTER  IX 

THE  TREATY-MAKING  POWER:   PRACTICAL  OPERATION 

PRESIDENTIAL  attitude  toward  Congressional  parti- 
cipation in  treaty-making  is  always  influenced  by  the 
exigencies  of  practical  politics,  and  for  this  reason,  if  no 
other,  it  has  varied  greatly  from  period  to  period.  Legally, 
the  Chief  Executive  may  ignore  the  Senate  until  the  draft 
treaty  has  been  negotiated ;  and  it  follows,  a  fortiori,  that 
he  may  ignore  the  House  of  Representatives.^  The  latter 
body,  however,  has  sometimes  endeavored  to  take  a  hand 
in  pending  negotiations.  Thus,  in  a  resolution  passed  in 
1848  the  House  requested  President  Polk  to  transmit  to  it 
information  regarding  negotiations  then  going  forward  with 
Mexico.  The  resolution  failed  to  contain  the  usual  clause 
conditioning  compliance  upon  compatibility  with  the  public 
interests,  and  it  was  a  manifest  attempt  to  withdraw  from 
the  full  control  of  the  President  negotiations  that  were  still 
in  progress ;  Polk  naturally  declined  to  comply  with  it.^  As 
far  back  as  1796  the  House,  replying  to  President  Washing- 
ton's message  on  the  Jay  Treaty  declining  to  transmit  in- 
formation regarding  the  negotiation,  disclaimed  any  part  in 

^Senator  Spooner,  an  able  constitutional  lawyer,  declared  in  1906:  **From 
the  foundation  of  the  Government  it  has  been  conceded  in  practice  and  in 
theory  that  the  Constitution  vests  the  power  of  negotiation  and  the  various 
phases — and  they  are  multifarious — of  the  conduct  of  our  foreign  relations 
exclusively  in  the  President.  And  he  does  not  exercise  that  constitutional 
power,  nor  can  he  be  made  to  do  it,  under  the  tutelage  or  guardianship  of  the 
Senate  or  of  the  House  or  of  the  Senate  and  House  combined."  Cong. 
Record,  Jan.  23,  1906,  vol.  40,  p.  1418.  Cf.  the  remarks  of  Senator  Lodge 
to  the  same  effect,  ibid.,  1470. 

'  Richardson,  Mess,  and  Pap.  of  the  Presidents,  IV,  565-7.  Cf .  the  resolution 
introduced  into  the  Senate  by  Senator  Knox  on  June  10,  1919,  regarding  the 
separation  of  the  treaty  of  peace  with  Germany  and  the  Covenant  for  the 
League  of  Nations.    Cong.  Eecord,  66th  Cong.,  1st  sess.,  p.  935. 

149 


150  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

treaty-making.  The  resolution  then  adopted  expressly 
excepted  from  the  request  any  information  whose  publica- 
tion would  have  a  prejudicial  effect  upon  pending  negotia- 
tions.^ Even  so,  the  President,  in  this  instance  also,  de- 
clined to  comply.  None  the  less,  although  legally  the  Pres- 
ident may  ignore  the  House,  considerations  of  practical 
politics  may  force  him  to  consult  that  body  or  to  transmit 
to  it  information  requested,  in  order  to  secure  necessary 
appropriations. 

The  same  considerations  may  also,  on  occasion,  make  it 
prudent  for  the  President  to  take  the  Senate  into  his  con- 
fidence prior  to  opening  negotiations,  by  presenting  to  that 
body  for  confirmation,  the  names  of  the  negotiators,  or  by 
submitting  their  instructions  for  approval,  or  in  other  ways. 
In  1792  President  Washington  addressed  a  communication 
to  the  Senate  asking  whether  that  body  would  advise  and 
consent  to  an  extension  of  the  powers  of  the  commissioners 
delegated  to  negotiate  a  treaty  with  Spain,  and  to  the 
ratification  of  a  treaty  to  be  negotiated  in  conformity  with 
such  instructions.  The  Senate,  by  a  resolution  passed  by 
a  two-thirds  vote,  answered  both  inquiries  in  the  affirmative, 
thus  actually  promising  approval  before  the  treaty  was 
negotiated.^  However,  as  we  have  seen,  the  President  did 
not  always  take  this  course. 

In  1846  James  Buchanan,  then  secretary  of  state,  in  writ- 
ing to  our  minister  to  Great  Britain  with  reference  to  pend- 
ing negotiations,  pointed  out  that  a  rejection  of  the  British 
ultimatum  might  lead  to  war,  and  added  that,  since  the 
Senate  constituted  a  portion  of  the  war-making  power,  *Hhe 
President,  in  deference  to  the  Senate,  and  to  the  true  theory 
of  the  constitutional  responsibilities  of  the  different 
branches  of  the  Government,  will  forego  his  own  opinions 
so  far  as  to  submit  to  that  body  any  proposition  which  may 

*  Annals  of  Congress,  4th  Cong.,  1st  sess.,  759-60. 
'  Senate  Executive  Journal,  I,  106,  115. 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION    151 

be  made  by  the  British  Government.''*  If  this  be  the  true 
theory  of  constitutional  responsibilities,  it  would  seem  that 
something  might  also  be  said  in  favor  of  consulting  the 
House  of  Representatives,  as  the  other  branch  of  the  war- 
making  power.  As  we  have  seen.  President  Polk  con- 
sulted the  Senate  in  1846  regarding  pending  treaty  negotia- 
tions. In  a  message  to  that  body  he  declared  this  practice 
to  be  ** eminently  wise." 

*'The  Senate,''  he  continued,  **are  a  branch  of  the  treaty- 
making  power,  and  by  consulting  them  in  advance  of  his 
own  action  upon  important  measures  of  foreign  policy  which 
may  ultimately  come  before  them  for  their  consideration, 
the  President  secures  harmony  of  action  between  that  body 
and  himself.  The  Senate  are,  moreover,  a  branch  of  the 
war-making  power ;  and  it  may  be  eminently  proper  for  the 
Executive  to  take  the  opinion  and  advice  of  that  body  in 
advance  upon  any  great  question  which  may  involve  in  its 
decision  the  issue  of  peace  or  war."^ 

Certainly  Presidents  have  not  always,  or  even  usually, 
adopted  such  a  conciliatory  attitude  toward  the  Senate 
during  treaty  negotiations.^  It  may,  however,  be  not  only 
a  necessity  of  practical  politics,  but  also  a  moral  duty  of  the 
President,  so  far  to  cooperate  with  the  other  branch  of  the 
treaty-making  power  as  to  consult  with  the  Senate,  or  at 
least  to  take  into  his  confidence  influential  members  of  the 
foreign  relations  committee,  during  the  course  of  important 
negotiations.*  If  there  is  thus  a  moral  duty  on  the  part 
of  the  President  to  consult  the  Senate,  it  follows  that,  cor- 
relatively,  there  is  a  moral  right  on  the  part  of  the  Senate 
to  be  consulted.  Some  friction  and  lack  of  smoothness  in 
the  working  of  the  treaty-making  function  of  the  Govern- 

^WorTcs  of  Buchanan  (Moore  ed.),  VI,  379,  quoted  by  Crandall,  op.  cit, 
71  n. 

'  Richardson,  Mess,  and  Pap.  of  the  Presidents,  IV,  449. 

'In  the  course  of  the  debate  on  the  Treaty  of  Versailles  of  1919  certain 
senators  complained  that,  although  the  President  was  in  full  control  of  the 
cables  and  wireless,  he  did  not  consult  with  them  nor  ask  their  advice  during 
the  Peace  Conference.    Cong.  Record,  November  6,  1919,  p.  8485. 

*  President  MeKinley,  as  we  have  seen,  went  so  far  as  to  appoint  members 
of  the  Senate  on  the  commission  to  negotiate  the  treaty  of  peace  with  Spain. 


152  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ment  is,  however,  almost  inevitable,  considering  that  the 
concurrent  action  of  two  independent  branches  of  the 
Government  is  necessary,  and  especially  when  the  Presi- 
dent and  the  majority  of  the  Senate  belong  to  opposite 
political  parties.^  But  friction  may  be  largely  reduced  by 
an  earnest  effort  on  both  sides  to  act  in  harmony, 

TREATIES    IN    THE    SENATE 

The  Senate  can  have  no  official  notice  as  to  the  text  of  a 
treaty,  and  can  secure  no  copy  as  a  basis  of  action,  except 
through  the  President.  This  arises  from  the  fact  that  the 
President  is  the  sole  official  organ  of  communication  be- 
tween the  American  and  foreign  governments.  It  follows 
also  that  the  Senate  cannot  act  officially  upon  a  treaty, 
either  favorably  or  unfavorably,  unless  and  until  the  prop- 
erly signed  and  authenticated  draft  has  been  transmitted 
by  the  President.  This  is  true,  even  though  the  Senate 
should,  through  other  channels,  come  into  possession  of  an 
official  copy  of  the  document  in  question.  During  the  early 
part  of  the  first  session  of  the  sixty-sixth  Congress,  reports 
were  circulated  to  the  effect  that  the  treaty  of  peace  with 
Germany  had  been  made  public,  and  a  document  which  pur- 
ported to  be  a  complete,  correct,  and  official  copy  of  the 
proposed  treaty  was  placed  in  the  hands  of  a  member  of 
the  Foreign  Eelations  Committee  of  the  Senate  by  the  | 
European  correspondent  of  one  of  the  metropolitan  dailies, 
who  had  returned  with  it  to  this  country;  and,  on  June  9, 
1919,  this  copy  was  spread  on  the  record  of  Congress.  The 
treaty,  however,  was  still  under  negotiation  at  Versailles 
and  was  not  signed  until  June  28.  Even  if  this  had  not 
been  the  case,  and  even  if  the  draft  which  thus  came  into 
the  possession  of  the  Senate  proved  to  be  an  identical  copy 

*  Interesting  observations  upon  the  relations  between  the  President  and  the 
Senate  in  treaty-making  are  made  by  Woodrow  Wilson  in  his  Congressional 
Government  (Boston,  1885),  232,  and  in  his  Constitutional  Government  in  the 
United  States  (New  York,  1908),  139-140. 


\ 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION    153 

of  that  which  the  President  subsequently  transmitted,  the 
treaty  could  not  at  that  time  have  been  before  the  Senate 
for  official  action  in  advising  and  consenting  to  its  ratifica- 
tion. Action  at  this  point  would  have  been  premature  and 
undoubtedly  futile,  because  the  President  could  still  have 
refused  ratification.  He  doubtless  might,  however,  have 
considered  favorable  action  upon  the  unofficial  copy  as  suf- 
ficiently indicating  the  Senate's  consent  to  the  ratification 
of  the  treaty,  or  unfavorable  action  as  foreshadowing  re- 
jection. 

When  the  President  sends  the  draft  of  a  treaty  to  the 
Senate,  the  question  may  be  raised  whether  that  body  is 
entitled  to  any  more  information  than  is  contained  in  the 
bare  text  of  the  document.  One  objection  that  has  some- 
times been  voiced  to  the  participation  of  the  Senate  in 
treaty-making  has  been  that  its  members  are  unfamiliar 
with  the  course  of  the  negotiations.  This  objection  may  be 
overcome,  however,  to  some  extent  at  least,  through  the 
transmission  by  the  President  of  as  full  information  as 
may,  compatibly  with  the  public  interest,  be  disclosed.  In 
the  case  of  the  treaty  of  peace  with  Spain,  President  Mc- 
Kinley  sent  to  the  Senate  various  papers,  including  the 
protocols  of  the  conferences  at  Paris  between  the  American 
and  Spanish  commissioners.^ 

Although  the  President  should,  wherever  feasible,  trans- 
mit to  the  Senate,  together  with  the  draft  of  a  proposed 
treaty,  such  information  and  explanations  as  will  enable 
that  body  to  act  in  an  intelligent  manner,  nevertheless  it  is 
within  his  discretion  to  determine  what  information  shall, 
or  shall  not,  be  furnished.  The  President  cannot  be  com- 
pelled, except  perhaps  in  impeachment  proceedings,  to 
submit  to  the  Senate  papers  in  his  possession  relating  to 
treaty  negotiations.  It  may  not  always  be  compatible  with 
the  public  interest  (or  the  President  may  feel  it  not  to  be 
such)  to  supply  the  Senate  with  full  information  regarding 

*Sen.  doc.  62,  pt.  2,  55th  Cong.,  3rd  sess.  (1899). 


154  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

all  the  circumstances  of  a  difficult  negotiation ;  and,  to  this 
extent,  the  Senate  may  be  compelled  to  act  in  partial  ig- 


SENATE    AMENDMENTS    AND    RESERVATIONS 

When  the  text  of  a  proposed  treaty  is  transmitted  to  the 
Senate  it  is  customary  for  that  body  to  refer  it  to  its  Com- 
mittee on  Foreign  Relations.  The  committee  may  fail  to 
report  the  treaty  back  to  the  Senate,  but  ordinarily  a  report 
is  made.^  Such  report  may  recommend  (1)  that  the  Senate 
advise  and  consent  to  the  treaty  as  drafted;  (2)  that  it 
refuse  its  consent  entirely;  or  (3)  that  it  consent  on  con- 
dition that  certain  amendments,  reservations,  or  under- 
standings be  incorporated  in  the  instrument.  Since  the 
majority  party  in  the  Senate  has  also  a  majority  vote  in 
the  committee,  the  action  of  the  committee  is  determined 
by  that  party.  Although  a  two-thirds  vote  of  the  Senators 
present  is  required  in  order  to  give  consent  to  ratification, 
as  well  as  to  postpone  indefinitely,  all  other  motions  and 
questions  upon  a  treaty  are  decided  by  a  majority  vote.^ 
Hence,  the  majority  party,  even  though  it  has  only  a  bare 
majority,  may  attach  to  the  resolution  of  ratification  sucTi 
proposed  amendments  and  reservations  ^  as  it  sees  fit,  and 
those  members  of  the  Senate  who  belong  to  the  minority 
party  (to  which  perchance  the  President  may  also  belong), 

*Thu8,  President  Wilson  declined  to  submit  to  the  Senate  along  with  the 
treaty  of  Versailles  of  1919  the  vroces-verhal  or  minutes  of  the  Peace  Confer- 
ence. "The  reason/'  said  the  President,  "we  constituted  that  very  small 
conference  was  so  that  we  could  speak  with  the  utmost  absence  of  restraint,  and 
I  think  it  would  be  a  mistake  to  make  use  of  those  discussions  outside." 
Hearings  hefore  the  Senate  Committee  on  Foreign  Belations  on  the  Treaty  of 
Peace  with  Germany,  p.  521. 

*  In  the  case  of  the  German  peace  treaty,  the  Foreign  Relations  Committee 
deliberated  two  months  before  reporting  the  instrument  back  to  the  Senate. 

»  Senate  Rule  XXXVII. 

*  Amendments  are  distinguished  from  reservations  in  that  the  former  involve 
textual  changes,  while  the  latter  do  not.  A.  H.  Washburn,  "Treaty  Amend- 
ments and  Reservations,"  Cornell  Law  Quarterly,  V,  257  (March,  1920). 
Cf .  Q.  Wright,  '  *  Amendments  and  Reservations  to  the  Treaty, ' '  Minnesota  Law 
Beview,  III,  17  (December,  1919),  and  E.  S.  Corwin,  The  Constitution  and 
What  It  Means  Today,  53. 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION    155 

are  then  reduced  to  the  necessity  either  of  voting  against 
the  treaty  or  of  accepting  it  with  the  amendments  and  res- 
ervations added  by  the  majority,  notwithstanding  that 
these  may  be  obnoxious  to  many  members  of  the  minority. 
If  the  President,  through  his  control  of  the  negotiations, 
may  place  the  Senate  in  the  dilemma  of  either  accepting  his 
treaty  of  peace  or  prolonging  against  its  will  the  state  of 
war,  so,  likewise,  the  majority  members  in  the  Senate  may 
place  the  minority  members  in  a  situation  where  they  are 
forced  either  to  accept  the  (to  them)  obnoxious  conditions 
attached  by  the  majority  to  the  resolution  of  ratification  or 
to  reject  the  treaty  entirely.^ 

As  already  indicated,  the  negotiation  of  a  treaty,  using 
the  term  in  the  broad  sense,  may  be  considered  as  still  in 
progress  while  the  instrument  is  before  the  Senate  for 
approval  or  rejection.  This  fact  has  sometimes  been  over- 
looked or  not  understood  by  foreign  governments,  who  have 
been  inclined  to  regard  as  something  akin  to  a  breach  of 
faith  the  failure  of  the  Senate  to  consent  to  the  ratification 
of  a  treaty  in  the  identical  form  in  which  it  left  the  hands 
of  the  negotiators.^  Governments  are  presumed  to  take 
reciprocal  notice  of  the  provisions  of  constitutions  concern- 
ing the  location  of  the  treaty-making  power.^  The  Senate 
is  legally  free  to  exercise  an  independent  judgment  in 
regard  to  the  terms  of  a  proposed  treaty,  and,  as  already 
indicated,  it  may  consent  to  ratification  without  change, 
may  reject  absolutely,  or  may  consent  to  ratification  with 
amendments.^  Speaking  strictly,  the  Senate  cannot  amend 
a  treaty.  But  it  can  propose  amendments  and  such  amena- 
ments  become  parts  of  the  instrument  when  accepted  by  the 
President  and  by  the  foreign  government  concerned.  When, 

^  The  situation  on  the  treaty  of  Versailles  is  an  illustration.  See  speech  of 
Senator  Walsh  of  Montana,  Cong.  Record,  March  19,  1920,  vol.  59,  p.  4903. 

^  Diplomatic  Hist,  of  the  Panama  Canal,  Sen.  doc.  474,  63rd  Cong.,  2nd  Sess., 
p.  14;  History  of  Amendments  Proposed  to  the  Clayton-Bulwer  Treaty,  Sen. 
doc.  746,  61st  Cong.,  3rd  Sess.,  p.  3. 

'Secretary  Gresham  to  the  Brazilian  minister,  Oct.  26,  1894,  Moore's  Digest 
of  Internat.  Law,  V,  361 ;  For.  Bels,  of  U.  S.,  1894,  p.  79 

*  Haver  v.  Yaker,  9  Wall.,  32. 


156  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

therefore,  the  Senate  proposes  amendments,  the  President, 
unless  he  elects  to  drop  the  treaty  entirely  (as  he  has  some- 
times done),  must  renew  negotiations  looking  to  the  accept- 
ance of  such  amendments  by  the  foreign  government.  Prac- 
tically, the  Senate  may  thus  participate  in  negotiations, 
although  only,  of  course,  through  the  voluntary  agency  of 
the  President.  *'The  Senate,''  declared  Senator  Bacon, 
** actively  engages  in  the  work  of  negotiation  when  it  makes 
an  amendment  to  a  proposed  treaty,  which  amendment  is 
to  be  submitted  by  the  President  to  the  foreign  power  for 
its  consideration  and  approval."^  When  the  Senate  advises 
and  consents  to  the  ratification  of  a  treaty  on  condition  that 
certain  amendments  be  incorporated  in  it,  and  the  consent 
of  the  foreign  government  is  secured  to  the  instrument  as 
thus  amended,  the  President  may  probably  then  proceed  to 
the  ratification  of  the  treaty  without  resubmission,  in  the 
amended  form,  to  the  Senate.^ 

After  transmission  to  the  Senate,  a  treaty  may  be  recalled 
by  the  President  at  any  time  for  farther  consideration,^  and 
it  may  later  be  resubmitted  to  the  Senate  with  changes  which 
the  foreign  government  has  accepted  or  it  may  be  dropped. 
The  President's  power  of  thus  controlling  a  treaty  even 
while  it  is  under  consideration  by  the  Senate  rests  upon  his 
ultimate  right  to  kill  it  by  failing  to  ratify  it  or  to  exchange 
ratifications,  if  he  deems  that  course  desirable.  The  Senate 
has  sometimes  proposed  such  amendments  to  a  treaty  proj- 
ect that  the  President,  facing  the  alternative  of  securing 

***The  Treaty-Making  Power  of  the  President  and  the  Senate, '^  North 
Americam,  Beview,  CLXXXII,  505.  An  example  of  this  occurred  in  1844,  when 
our  minister  to  Mexico  was  appointed  and  directed  by  the  President  to  open 
negotiations  for  the  purpose  of  obtaining  the  consQpt  of  the  Mexican  Govern- 
ment to  the  modifications  introduced  by  the  Senate  into  the  convention  signed 
with  that  government  on  Nov.  20,  1843.  Sen.  doc.  231,  56th  Cong.,  2d  sess., 
vol.  VIII,  p.  346. 

'Upon  advice  of  Secretary  Randolph,  the  Jay  treaty  was  not  resubmitted 
to  the  Senate  under  these  circumstances.    Crandall,  op.  cit.,  80-81. 

•  Thua  the  salmon  fisheries  treaty  with  Great  Britain,  after  submission  to  the 
Senate,  was  recalled  by  the  President  on  account  of  the  protests  of  certain 
fishery  interests  in  the  State  of  Washington.  See  Cong.  Record,  Jan.  17,  1920, 
VOL  59,  p.  1733. 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION    157 

the  consent  of  the  foreign  government  to  the  amendments 
or  of  letting  the  treaty  drop  altogether,  has  adopted  the 
latter  course  as  the  lesser  evil.  A  noteworthy  illustration 
is  the  general  arbitration  treaties  negotiated  during  Presi- 
dent Roosevelt's  administration.  It  is  not  necessary  at 
this  time  to  go  into  the  merits  of  the  controversy  between 
the  President  and  the  Senate  in  this  case.  It  is  sufficient  to 
point  out  that. the  difference  of  opinion  did  not  directly 
involve  the  question  of  the  desirability  of  international  arbi- 
tration, but  turned  on  the  question  whether  the  special 
agreements  to  be  drawn  up  for  the  purpose  of  defining  each 
particular  matter  of  international  controversy  should  be 
submitted  to  the  Senate.  Neither  the  President  nor  the 
Senate  was  willing  to  yield  to  the  other  on  this  point ;  hence 
the  treaty  was  lost. 

It  is  universally  admitted  that  the  President  may  with- 
hold ratification  from  a  treaty  to  which  the  Senate  has  given 
its  advice  and  consent  with  amendments,  but  it  has  been 
alleged  that,  if  the  Senate  advises  and  consents  to  a  pro- 
posed treaty  in  the  exact  form  in  which  it  was  submitted 
by  the  President,  this  act  ** concludes  the  transaction''  and 
the  President  has  no  choice  except  to  ratify.^  This,  how- 
ever, is  undoubtedly  an  erroneous  view.  Circumstances 
might  arise  which  would  make  ratification  inadvisable  even 
after  the  Senate  has  approved  a  treaty  without  amendment ; 
and  the  President  has,  as  a  matter  of  fact,  under  these  cir- 
cumstances, exercised  his  discretion  to  withhold  ratifica- 
tion.2 

The  power  to  propose  unacceptable  amendments  may  be 
used  by  the  Senate  for  the  purpose  of  killing  a  treaty 
without  incurring  the  possible  odium  of  rejecting  it  outright. 
On  the  other  hand,  the  power  may  be  used  to  perfect  a 
treaty  or  to  bring  it  more  nearly  into  harmony  with  the 
political  traditions  or  the  economic  interests  of  this  country 

^Senators  Brandegee  and  Reed,  in  Congressional  Record,  March  2,  1920,  vol. 
59,  pp.  4032-33. 
^See  Crandall,  op.  cit.,  97,  98. 


158  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

and  of  its  various  sections,  on  lines  which  may  not  have  been 
fully  appreciated  by  the  Executive  during  the  preliminary 
negotiations.^  The  power  to  propose  amendments  and  to 
insert  reservations  or  interpretations  into  its  resolution  of 
ratification  has  been  used  by  the  Senate  at  all  periods  of  our 
history,  but  with  increasing  frequency  in  later  decades.^ 
*  *  Of  recent  years,  ^ '  says  a  close  observer,  *  *  the  Senate  has 
shown  what  amounts  almost  to  a  mania  to  amend  treaties ; 
and  unless  the  President  accepts  the  amendment,  a  treaty 
that  may  have  been  the  work  of  months  of  careful  and  in- 
tricate negotiations  is  wrecked.  .  .  .  More  than  once  I 
have  heard  Mr.  Hay  say  that,  in  dealing  with  foreign 
governments,  he  felt  as  if  he  had  one  hand  tied  behind  his 
back  and  a  ball  and  chain  about  his  leg,  as  he  was  always 
hampered  by  the  Senate.'*^  Secretary  Hay  was,  indeed, 
unduly  severe  in  his  strictures  upon  the  attitude  of  the 
Senate  toward  treaties.  He  declared  that  he  *'did  not 
believe  another  important  treaty  would  ever  pass  the 
Senate '*  and  that  ^*  there  will  always  be  34  per  cent  of  the 
Senate  on  the  blackguard  side  of  every  question  that  comes 
before  them.''*     Senate  reservations  and  amendments  are 

***It  was  a  wise  provision  of  the  Constitution,"  says  Professor  Philip  M. 
Brown,  "which  placed  the  power  to  negotiate  and  the  power  to  ratify  in 
different  hands.  Many  a  time  has  the  Senate  performed  a  great  patriotic 
service  as  well  as  a  constitutional  one  in  submitting  treaties  to  a  merciless 
examination,  and  in  some  cases  to  revision.  An  excellent  example  of  this 
was  the  first  Hay-Pauncefote  treaty,  which  failed  to  reserve  the  right  of  the 
United  States  to  fortify  the  Panama  Canal.  Its  revision  by  the  Senate  was 
plainly  imperative"  (paper  reprinted  in  Cong.  Eecord,  January  28,  1920,  vol. 
59,  p.  2269).  Cf.  History  of  Amendments  Proposed  to  the  ClaytoTi-Bulwer 
Treaty,  Sen.  doc.  746,  6l8t  Cong.,  3rd  sess.,  p.  6;  W.  E.  Thayer,  Life  and  Let- 
ters of  John  Hay,  II,  230,  273.  Professor  Brown,  of  course,  falls  into  error 
in  supposing  that  the  power  to  negotiate  and  the  power  to  ratify  are  placed  in 
different  hands. 

^For  collection  of  Senate  reservations  see  Sen.  Doc.  135,  66th  Cong.,  1st 
sess. ;  and  see  articles  by  C.  P.  Anderson  in  Am.  Jour,  of  Intemat.  Law,  XIII, 
526-30;  F.  B,  Kellogg,  ibid.,  767-773;  and  Q.  Wright  in  Minnesota  Law 
Bevieiv,  IV,  14-39  (Dec,  1919).  For  the  reservations  proposed  to  the  German 
Peace  Treaty,  see  Cong.  Kecord,  March  19,  1920,  vol.  59,  p.  4915. 

'A.  Maurice  Low,  "The  Usurped  Powers  of  the  Senate,"  Am.  Pol.  Sci, 
Bev.,  I,  14,  16  (Nov.,  1906). 

*  W.  K.  Thayer,  Life  and  Letters  of  John  Hay,  II,  170,  254.  Hay  likened  a 
treaty  entering  the  Senate  to  a  "bull  going  into  the  arena;  no  one  can  say 
just  how  or  when  the  final  blow  will  fall — ^but  one  thing  is  certain — it  will  never 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION    159 

doubtless  sometimes  proposed  and  adopted,  not  for  the  pur- 
pose of  perfecting  the  substance  of  the  treaty,  nor  yet  as 
indicating  any  real  hostility  to  the  main  object  of  the  in- 
strument, but  for  the  simple  purpose  of  protecting  the 
Senate  against  the  real  or  fancied  encroachments  of  the 
Executive.  This  was  alleged  to  have  been  the  animus,  in 
part  at  least,  behind  the  amendments  proposed  and  adopted 
to  the  general  arbitration  treaties  submitted  to  the  Senate 
in  the  administrations  of  Presidents  Roosevelt  and  Taft.^ 
In  order  that  Senate  amendments  or  reservations  may  be 
valid  and  binding  as  parts  of  a  treaty,  they  must  be  ap- 
proved by  the  President  and  must  also  receive  the  consent, 
express  or  tacit,  of  the  foreign  country.^  In  1838  the  United 
States  made  a  treaty  with  the  New  York  Indians.^  But  the 
Senate  adopted  a  resolution  which  purported  to  change  the 
terms.  The  resolution,  however,  was  not  brought  to  the 
attention  of  the  Indian  tribe,  was  not  approved  by  the  Pres- 
ident, and  was  not  published  with  the  treaty  in  the  Presi- 
dent's proclamation.  The  Supreme  Court,  therefore,  held 
that  it  never  became  operative  and  could  not  be  considered 
as  a  part  of  the  treaty.*  Shortly  after  the  Senate  advised 
and  consented  to  the  ratification  of  the  treaty  of  peace  with 
Spain  in  1899,  it  agreed  to  a  joint  resolution  to  the  effect 

leave  the  arena  alive.''  Ibid.,  393.  He  was  so  incensed  at  the  action  of  the 
Senate  on  the  first  Hay-Pauncefote  treaty  of  1900  that  he  tendered  his  resigna- 
tion to  President  McKinley,  which,  however,  was  not  accepted.    Ibid.,  226. 

*  Similarly,  some  of  the  Senate  (or  Lodge)  reservations  to  the  Treaty  of 
Versailles,  while  doubtless  animated  by  a  desire  to  protect  general  American 
interests,  appear  also  to  have  been  based,  in  part,  upon  a  desire  to  place  the 
President  under  Congressional  supervision  in  various  dealings  with  foreign 
nations  which  he  would  have  under  the  treaty,  if  ratified.  See  D.  J.  Hill, 
**The  Covenant  or  the  Constitution,"  North  American  B&view,  CCXI,  329-331 
(March,  1920). 

'In  the  Senate  resolution  advising  and  consenting  to  ratification  of  the 
treaty  of  peace  with  Germany  (provided  two-thirds  of  the  senators  present 
should  concur),  subject  to  certain  reservations,  it  was  provided  that  **a  failure 
on  the  part  of  the  allied  and  associated  powers  to  make  objection  to  said 
reservations  and  understandings  prior  to  the  deposit  of  ratification  by  the 
United  States  shall  be  taken  as  a  full  and  final  acceptance  of  such  reserva- 
tions and  understandings  by  said  powers."  Cong.  Record,  March  19,  1920, 
vol.  59,  p.  4915. 

'  7  Stat,  at  L.,  550. 

*  New  York  Indians  v.  United  States,  170  U.  S.,  1. 


160  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

that  it  was  not  thereby  intended  to  admit  the  inhabitants 
of  the  Philippine  islands  to  United  States  citizenship  or 
permanently  to  annex  the  islands.  The  Supreme  Court 
held,  however,  that  the  meaning  of  the  treaty  of  peace  could 
not  be  altered  or  controlled  by  the  Senate  resolution.^  On 
the  other  hand,  our  delegates  to  the  Second  Hague  Con- 
ference endeavored  to  safeguard  the  Monroe  Doctrine  by 
declaring,  before  signing  the  convention  for  the  pacific 
settlement  of  international  disputes,  that  *^  Nothing  con- 
tained in  this  convention  shall  be  so  construed  as  to  require 
the  United  States  to  depart  from  its  traditional  policy  of 
not  intruding  upon,  interfering  with,  or  entangling  itself 
in  the  political  questions  of  policy  or  internal  administra- 
tion of  any  foreign  state ;  nor  shall  anything  contained  in 
the  said  convention  be  construed  to  imply  a  relinquishment 
by  the  United  States  of  its  traditional  attitude  toward 
purely  American  questions.'' ^  This  reservation  may  be 
considered  as  valid,  since  it  was  incorporated  both  in  the 
Senate's  resolution  of  ratification  and  in  the  President's 
proclamation  of  the  treaty,  and  received  the  tacit  assent 
of  the  other  signatory  powers. 

On  the  other  hand,  a  reservation  or  interpretation  made 
by  the  President  alone,  without  the  consent  of  the  Senate 
and  of  the  other  signatory  power,  would  not  be  binding;  and 
for  this  reason  the  President  usually  declines  to  accompany 
a  treaty  with  explanations  which  have  not  been  authorized 
by  the  Senate  in  its  resolution  of  ratification.  When  the 
Senate,  however,  has  consented  to  the  ratification  of  a  treaty 
with  certain  reservations,  and  such  reservations  have  been 
accepted  by  the  other  contracting  power,  the  acceptance  may 

*  Fourteen  Diamond  Rings  v.  United  States,  183  U.  S.,  176.  For  the  text 
of  the  Senate  resolution,  see  Cong.  Record,  Feb.  14,  1899,  vol.  32,  p.  1846. 
The  resolution  was  passed  by  a  vote  of  26  to  22,  or  less  than  two-thirds  of 
a.  quorum,  and  was  never  approved  by  the  House  of  Representatives  or  by 
the  President.  It  is  to  be  regarded  as  an  almost  contemporaneous  explanation 
of  intention,  rather  than  as  a  reservation.  According  to  Justice  Brown,  who 
concurred  in  the  opinion  of  the  court,  it  would  not  have  altered  the  situation 
had  the  resolution  passed  the  Senate  by  a  unanimous  vot€. 

» Malloy,  Treaties,  etc.,  p.  2247. 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION    161 

be  acknowledged  and  effectuated  by  the  President  alone 
without  consultation  with  the  Senate.^  It  is  doubtful,  how- 
ever, whether  the  President  could  accept,  on  behalf  of  our 
government,  reservations  attached  to  a  treaty  by  the  other 
contracting  power,  without  securing  the  consent  of  the 
Senate  thereto.  On  at  least  one  occasion  the  Senate  ap- 
parently took  the  position  that  an  amendment  or  reservation 
made  by  a  foreign  government  must  be  accepted,  not  only 
by  the  President,  but  also  by  the  Senate  itself,  in  order  to 
be  valid  as  a  part  of  a  treaty. ^ 

OPEN   EXECUTIVE   SESSIONS 

In  the  great  majority  of  cases  the  Senate  has  considered 
treaties  behind  closed  doors.  But  within  recent  years  an 
agitation  has  arisen  in  favor  of  considering  them  in  open 
executive  session,  and  this  has  been  done  in  a  few  cases, 
the  most  conspicuous  instance  being  that  of  the  peace  treaty 
with  Germany,  including  the  Covenant  of  the  League  of 
Nations.  The  experience  in  this  case,  however,  cannot  be 
said  to  show  this  method  to  be  wholly  satisfactory.^     It 

*  Thus,  the  Senate  advised  and  consented  to  the  ratification  of  the  convention 
between  the  United  States  and  Denmark  ceding  to  the  United  States  the 
Danish  West  Indies,  with  the  proviso  that  the  attitude  of  the  United  States^  in 
respect  to  the  property  of  the  Danish  national  church  in  the  islands  should' be 
made  the  subject  of  an  exchange  of  notes  between  the  two  governments.  This 
exchange  was  effected  by  the  President  alone  on  January  3,  1917.  See  39 
U.  S.  Stat,  at  L.,  jxart  2,  pp.  1716-7. 

^In  advising  and  consenting  to  the  ratification  of  the  General  Act  for  the 
Suppression  of  the  African  Slave  Trade,  the  Senate  resolved  '  *  that  the  Senate 
advise  and  consent  to  the  acceptance  of  the  partial  ratification  of  the  said 
General  Act  on  the  part  of  the  French  Eepublic,  and  to  the  stipulations  rela- 
tive thereto,  as  set  forth  in  the  protocol  signed  at  Brussels,  January  2,  1892.^' 
Malloy,  Treaties,  etc.,  p.  1991.  In  the  debate  on  the  reservations  to  the  Ger- 
man peace  treaty  Senator  Norris  said:  *'I  should  think,  as  a  matter  of  law, 
in  our  Government,  a  very  serious  legal  question  would  be  involved  that  would 
really  affect  the  validity  of  a  treaty  if  the  President  should  act  and  acquiesce 
in  a  reservation  coming  from  some  other  country  without  the  consent  of  the 
Senate. ' '    Cong.  Kecord,  March  19,  1920,  vol.  59,  p.  4889. 

'In  the  debate  on  reservations  to  the  German  peace  treaty  Senator  Thomas 
expressed  his  opinion  of  open  executive  sessions  on  treaties  as  follows:  "If 
any  member  of  this  body  still  holds  the  opinion  that  open  executive  sessions 
are  wise  or  even  politic,  I  trust  the  spectacle  which  the  Senate  has  today  pre- 
sented to  the  people  of  the  United  States  will  serve  to  disillusion  him.  And 
if  anyone  longer  imagines  that  any  issue  submitted  to  this  body  for  determina- 


162  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

seemed  to  render  compromise  between  the  various  factions 
in  the  Senate  more  difficult.  Some  persons  might  hold  that 
compromise  in  this  case  was  not  desirable,  and  that  in  order 
to  safeguard  the  public  interests,  the  full  light  of  publicity 
should  be  thrown  on  the  proceedings  of  the  Senate.  There 
is  undoubtedly  force  in  this  argument,  but,  where  the  treaty- 
making  power  is  vested  in  two  independent  organs  of  the 
government,  and  a  two-thirds  vote  in  one  of  these  organs  is 
required,  compromise  may  frequently  be  necessary,  if  the 
treaty-making  power  is  to  function  at  all  satisfactorily. 
The  experience  with  the  German  Peace  Treaty  would  seem 
f 0  indicate  further  that  it  would  be  desirable  to  amend  the 
Constitutional  provisions  relating  to  the  treaty-making 
power  so  as  to  require  the  consent  merely  of  an  absolute 
majority  of  all  members  of  the  Senate  instead  of  a  two- 
thirds  majority  of  those  present,  in  order  to  prevent  a 
minority  of  that  body  from  blocking  action.^ 

tion,  however  great,  will  escape  the  contamination  of  a  sordid  and  humiliating 
partisanship,  let  him  read  the  Congressional  Keeord  and  be  undeceived." 
Cong.  Keeord,  March  18,  1920,  vol.  59,  p.  4847.  Although  not  without  some 
justification,  this  judgment  is  probably  too  severe. 

*  At  the  Jackson  Day  banquet  of  1920,  William  J.  Bryan  said:  **  According 
to  the  Constitution,  a  treaty  is  ratified  by  a  two-thirds  vote,  but  the  Demo- 
cratic party  cannot  afford  to  take  advantage  of  the  constitutional  right  of  a 
minority  to  prevent  ratification.  A  majority  of  Congress  can  declare  war. 
Shall  we  make  it  more  difficult  to  conclude  a  treaty  than  to  enter  a  war?" 
Address  reprinted  in  Cong.  Eecord,  January  9,  1920,  vol.  59,  p.  1292.  In  this 
connection  it  is  interesting  to  note  that  in  the  convention  of  1787  Madison 
secured  the  temporary  adoption  of  a  provision  which  would  have  allowed 
treaties  of  peace  to  be  made  by  the  President  and  a  mere  majority  of  the 
Senate;  while  James  Wilson  objected  to  the  two-thirds  requirement  on  the 
ground  that  *'if  two-thirds  are  necessary  to  make  peace,  the  minority  may 
perpetuate  war,  against  the  sense  of  the  majority."  Documentary  History 
of  the  Constitution,  III,  700,  704.  A  proposal  that  a  majority  of  the  total 
number  of  members  should  suffice  to  give  the  Senate's  assent  to  treaties  was 
defeated  by  the  bare  margin  of  one  vote.    Ihid.,  705. 

As  a  result  of  the  Senate's  inability  to  consent  to  the  ratification  of  the 
treaty  of  Versailles,  a  movement  developed  to  reduce  the  number  of  senators 
required  to  vote  favorably  on  a  treaty  from  two- thirds  to  a  bare  majority. 
The  arguments  put  forth  in  favor  of  this  change  are  that  the  two-thirds  rule 
has  proved  unworkable  in  practice  and  that  a  minority  of  the  Senate  should 
no  longer  be  allowed  to  block  action.  In  order  to  carry  out  this  purpose,  as 
well  as  to  give  the  President  a  clear  initiative  in  framing  treaties,  a  joint 
resolution  to  amend  the  Constitution  was  introduced  by  Senator  Owen  as 
follows:  *'The  President  shall  have  power,  by  and  with  the  advice  of  the 
Senate,  to  frame  treaties,  and,  with  the  consent  of  the  Senate,  a  majority  of 
the  Senators  present  concurring  therein,  to  conclude  the  same."    Senate  joint 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION   163 

PEESIDENTIAL   INFLUENCE    OVER   SENATORIAL.   ACTION 

To  what  extent  may  the  President  control  the  Senate  with 
a  view  to  securing  favorable  action  on  treaty  projects! 
Legally,  the  Senate  is,  of  course,  free  to  act  as  it  chooses, 
without  regard  to  the  President's  wishes;  practically,  what 
the  President  desires  is  often  a  factor  of  considerable  im- 
portance in  determining  its  course.    If  the  political  party*^ 
to  which  the  President  belongs  has  a  considerable  majority^ 
in  the  Senate  the  interests  of  party  success  and  solidarity*^ 
will  naturally  tend  to  bring  into  line  in  favor  of  the  treaty^ 
senators  who  might  otherwise  adopt  an  unfavorable  atti- 
tude.   In  senatorial  action  upon  treaties,  however,  party^ 
considerations  do  not  usually  have  as  much  weight  as  in 
the  consideration  of  questions  of  purely  domestic  concern. 
It  usually  happens  that  when  the  Senate  votes  on  treaties 
members  of  both  parties  are  found  on  each  side.    Excep- 
tions to  this  rule  are  most  apt  to  occur  in  the  case  of  admin- 
istration treaties  submitted  to  the  Senate  shortly  before 
a  Presidential  election.^ 

Although  the  Senate  has  sometimes  failed  to  consent  to 
the  ratification  of  treaties  which  seemed  to  have  general 
popular  approval,  that  body  is  by  no  means  entirely  lacking 
in  sensitiveness  to  public  opinion,  and  it  will  not  ordinarily 
stand  out  against  a  treaty,  even  when  submitted  by  a  Presi- 
dent of  the  opposite  political  party,  if  ratification  is  clearly 
demanded  by  an  overwhelming  public  sentiment.^    A  treaty 

resolution  176,  66th  Congress,  2d  sess.,  Cong.  Eecord,  March  22,  1920,  vol.  59, 
p.  5009. 

*  Thus  in  1888  the  Bayard-Chamberlain  treaty  was  defeated  in  the  Senate  by 
a  strict  party  vote. 
^But,  as  Woodrow  Wilson  has  said,  ^'The  President  has  not  the  same  re- 
course when  blocked  by  the  Senate  that  he  has  when  opposed  by  the  House 
[of  appealing  to  public  opinion].  .  .  .  The  Senate  is  not  so  immediately  sensi- 
tive to  opinion  and  is  apt  to  grow,  if  anything,  more  stiff  if  pressure  of  that 
kind  is  brought  to  bear  upon  it. ' '  Constitutional  Government  in  the  U.  S.,  139. 
Secretary  Hay  declared  that  "the  irreparable  mistake  of  our  Constitution  puts 
it  into  the  power  of  one-third  plus  one  of  the  Senate  to  meet  with  a  cate- 
gorical veto  any  treaty  negotiated  by  the  President,  even  though  it  may  have 
the  approval  of  nine-tenths  of  the  nation. '  *  Thayer,  Life  and  Letters  of  John 
Hay,  II,  219. 


164  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

initiated  by  a  President  who  makes  no  effort  to  consult  with 
the  Senate  during  negotiations  and  fails  to  take  senatorial 
leaders  into  his  confidence,  or  one  negotiated  by  a  Secretary 
of  State  who  exhibits  that  lack  of  adeptness  in  the  political 
aspects  of  treaty-making  which  arises  from  want  of  Con- 
gressional experience,  will  naturally  have  harder  sledding 
in  the  Senate  than  would  otherwise  have  been  the  case. 
Nevertheless,  even  with  this  handicap,  the  President  may 
on  occasion  so  shape  the  course  of  events  as  to  put  consid- 
erable pressure  on  the  Senate  to  consent  to  the  ratification 
of  a  treaty,  in  somewhat  the  same  way  (although  not  to 
the  same  extent)  that  he  may  bring  about  conditions  which 
practically  compel  Congress  to  declare  war.  The  influence 
which  the  President  may  thus  exert  over  the  action  of  the 
Senate  arises  from  his  power  largely  to  control  the  condi- 
tions of  negotiation,  and  thereby  virtually  to  commit  the 
nation  beforehand  to  the  adoption  of  a  treaty.^ 

Attempt  by  the  President  to  bring  pressure  of  this  sort 
to  bear  upon  the  Senate  has  sometimes  been  severely  criti- 
cized, and  even  denounced  as  a  usurpation  of  power.^  But, 
just  as  a  bill  containing  obnoxious  riders,  which  the  Presi- 
dent is  practically  compelled  to  sign  against  his  better  judg- 
ment or  allow  to  become  a  law  without  his  signature,  is 

^Cf.  Woodrow  Wilson,  Constitutional  Government  in  the  United  States,  77  j 
ibid.,  Congressional  Government,  233-4. 

^In  the  course  of  the  debate  on  the  Treaty  of  Versailles  in  1919  Senator 
La  Follette  said:  "They  [the  Senate]  have  that  power  [of  amendment],  but 
the  conditions  then  operate  to  deprive  them  of  that  freedom  of  judgment 
which  the  Constitution  intended  to  confer  upon  them.  .  .  .  He  [the  President] 
has  proceeded  in  such  a  manner  as  to  render  it  impossible  for  the  Senate  to 
advise  with  him  effectively  upon  the  subject  and  also  in  such  a  manner  as  to 
compel  the  Senate  to  concur  in  the  treaty  or  else  leave  the  country  still  in  a 
state  of  war."  Cong.  Record,  Nov.  6,  1919,  vol.  58,  pp.  8482,  8489.  Speaking 
of  the  same  situation,  Dr.  David  J.  Hill  declared:  ''The  superior  power  of 
the  President  lies  in  the  fact  that  he  can  create  conditions  which  may  embarrass 
the  free  judgment  of  his  colleagues  in  exercising  the  treaty-making  power. 
.  .  .  The  contention  that  one  department  of  the  Government  may  in  any  way 
coerce  another  is  a  repudiation  of  the  very  purpose  of  the  division  of  power, 
and  would  result  in  the  destruction  of  that  freedom  under  law  which  the  Con- 
stitution aims  to  establish.  .  .  .  Absolutism,  which  the  Constitution  was  in- 
tended to  prevent,  might  thus  creep  in  through  the  usurpation  of  power  by  a 
single  department,  or  even  by  a  single  ofl&cer  of  the  Government."  Present 
Froblems  in  Foreign  Folicy,  162-3. 


i 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION   165 

of  as  full  legal  validity  as  if  the  obnoxious  conditions  had 
not  existed,  so  the  validity  of  a  treaty,  if  duly  consented 
to  by  the  Senate,  under  whatsoever  conditions  of  practical 
compulsion,  is  not  thereby  affected ;  for  full  legal  freedom 
of  action  on  the  part  of  the  Senate  remains.  Doubtless  the 
framers  of  the  Constitution  had  no  intention  that  either 
form  of  coercion  should  be  employed.  If  this  be  so,  one 
must  simply  say  that  constitutional  theory  has  been  modi- 
fied by  practice.  Moreover,  on  account  of  the  independent 
position  of  the  Senate  and  the  long  tenure  of  its  members, 
it  is  extremely  difficult  to  put  such  pressure  upon  that  body 
as  practically  to  rob  it  of  free  judgment  in  treaty  matters. 
Certainly,  as  the  precedents  amply  show,  the  President 
can  exert  much  less  pressure  upon  the  Senate  in  such  mat- 
ters than  upon  Congress  in  bringing  about  a  declaration  of 
war.  The  President  **  proposes  but  by  no  means  disposes, 
even  in  this  chief  field  of  his  power. ' '  ^ 

CONCLUSIONS 

In  conclusion,  the  question  may  be  raised  whether  the 
participation  of  the  Senate  in  the  treaty-making  power  has 
been,  on  the  whole,  injurious  or  beneficial  in  its  effect  upon 
the  general  course  of  our  foreign  relations.  Participation 
by  the  Senate  may  be  objected  to  on  the  ground  that  the 
action  of  that  body  is  taken  by  men  who,  as  a  rule,  are  not 
wholly  familiar  with  the  preliminary  negotiations,  who  are 
sometimes,  perhaps,  too  easily  swayed  by  considerations  of 
party  advantage,  and  do  not  rest  under  any  adequate  sense 
of  responsibility  for  their  action.  There  is  undoubtedly 
some  force  in  these  charges.  The  President  is  primarily 
responsible  for  the  conduct  of  our  foreign  relations,  and 
if  such  relations  become  confused  and  involved  through  the 
failure  of  the  Senate  to  consent  to  the  ratification  of  a 

*  Woodrow  Wilson,  ConstitutioTial  Government  in  the  Vnite^  St<ftes,  139, 


166  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

treaty,  or  through  its  attempt  to  remodel  the  instrument 
under  the  guise  of  attaching  amendments,  with  the  result 
of  making  it  unsatisfactory  both  to  the  President  and  to 
the  foreign  power,  the  President  may  be  made  to  bear 
blame  which  does  not  rightly  rest  upon  his  shoulders. 

On  the  other  hand,  the  Senate  in  its  action  upon  treaties 
is  often  more  strongly  influenced  by  considerations  of  do- 
mestic than  of  foreign  policy.  This  tendency  was  illus- 
trated, to  mention  no  more  recent  examples,  by  the  rejection 
of  the  treaty  of  1844  for  the  annexation  of  Texas  and  by 
the  failure  to  act  upon  the  Danish  treaty  of  1868  for  the 
acquisition  of  St.  Thomas.  In  the  former  case  the  slavery 
issue  was  involved,  while  in  the  latter  the  controlling 
impetus  was  hostility  to  the  administration.  Senatorial 
failure  to  act  on  the  Danish  treaty  placed  us  in  the  unten- 
able position  of  refusing  to  purchase  the  Danish  islands, 
while,  under  the  Monroe  Doctrine,  we  would  not  allow  the 
mother  country  to  sell  them  to  any  other  nation.  We  finally 
purchased  them  in  1916  for  several  times  the  price  at  which 
we  might  have  secured  them  in  1868,  had  the  Senate  then 
been  able  to  forget  domestic  issues  and  to  regard  the  mat- 
ter wholly  from  the  standpoint  of  external  policy.  Some- 
times, however,  controlling  domestic  considerations  relate 
to  the  welfare  of  the  country  rather  than  to  party  advan- 
tage, and  instances  have  occurred  in  which  the  attitude  of 
the  Senate  came  to  be  generally  recognized  as  more  far- 
sighted  than  that  of  the  Executive.  A  minority  of  the 
Senate  should  not  be  allowed  to  block  action ;  and  it  should 
be  possible  for  the  Senate  to  act  by  vote  of  a  majority 
of  all  the  senators  elected — at  all  events  provided  that  such 
majority  represents  states  having  more  than  half  of  the 
total  population  of  the  country.  Aside  from  this  change, 
however,  our  experience  with  the  making  of  treaties  does 
not  clearly  indicate  any  need  of  a  fundamental  reconstruc- 
tion of  the  existing  powers  and  processes. 


TREATY-MAKING  POWER:  PRACTICAL  OPERATION    167 

REFERENCES 

Butler,  C.  H.,  The  Treaty-Making  Power  of  the  United  States  (New  York, 

1902),  II,  366-381. 
Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 

1917),  84-92;  168-204. 
Crandall,  S.  B.,  Treaties,  Their  Making  and  Enforcement  (2d  ed.,  New 

York,  1916),  Chaps.  Ill,  VI- VII. 
Devlin,  Treaty  Power  (San  Francisco,  1908),  Chap.  IV. 
Foster,  J.  W.,  The  Practice  of  Diplomacy  (Boston,  1906),  Chaps.  XII, 

XIII. 
Hayden,  R.,  The  Senate  and  Treaties,  1789-1817  (New  York,  1920). 
Miller,  D.  H.,  Reservations  to  Treaties:  Their  Effect  and  the  Procedure  in 

Regard  Thereto  (Washington,  1919). 
Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  V,  156-210. 
Reinsch,   P.   S.,   American  Legislatures   and  Legislative  Methods    (New 

York,  1907),  94-107. 
Sutherland,   G.,   Constitutional  Power  and  World  Affairs    (New  York, 

1919),  Chap.  VI. 
Willoughby,  W.  W.,  Constitutional  Law  of  the  United  States  (New  York, 

1910),  I,  Chap.  XXXIL 


CHAPTER  X 

THE  AGREEMENT-MAKING  POWER 

JUST   as  in  the  relations  between  individuals  many 
understandings  and  agreements  are  entered  into  which 
are  not  embodied  in  formal  contracts,  but  are  nevertheless 
considered  binding,  so  in  the  conduct  of  our  international 
relations  it  sometimes  seems  both  desirable  and  necessary 
to  make  agreements  with  foreign  nations  without  the  for- 
mality of  submitting  them  to  the  Senate  for  its  advice  and 
consent.^    In  the  constitutions  of  several  foreign  countries, 
e,g,y  France,  a  distinction  is  made  between  different  kinds 
of  treaties,  and  only  the  more  important  ones,  such  as 
treaties  of  peace  and  commerce  and  those  which  obligate 
the  finances  of  the  state,  are  required  to  b^. submitted  to 
the  legislative  branch.    There  is  no  express  grant  of  the 
power  of  making  international  agreements  without  sena- 
torial consent  in  the  constitution  of  the  United  States. 
None  the  less,  that  instrument  impliedly  recognizes  a  dis- 
tinction between  a  treaty  and  a  mere  compact  or  agree- 
ment, for  it  absolutely  forbids  the  states  to  make  the  former, 
but  permits  them,  with  the  consent  of  Congress,  to  enter 
into  the  latter.^    Moreover,  the  Constitution  confers  upon 
the  President  diplomatic  powers  and  makes  him  commander- 

*In  his  recently  published  volume,  The  Government  of  the  United  States, 
Professor  W.  B.  Munro,  a  writer  of  deservedly  high  standing,  says:  *' Every 
form  of  international  agreement  to  which  the  United  States  is  a  party  must 
be  submitted  to  the  Senate"  (p,  166).  If  this  were  true,  the  present  chapter 
would  never  have  been  written. 

'Art.  I,  Sect.  10,  cl.  1  and  3.  In  the  case  of  Holmes  v.  Jennison,  14  Pet., 
540,  at  pp.  571-2,  Chief  Justice  Taney  observed  that,  by  the  Constitution, 
"the  states  are  forbidden  to  enter  into  any  'agreement'  or  'compact'  with 
a  foreign  nation;  and  as  the  words  could  not  have  been  idly  or  superfluously 
used  by  the  framers  of  the  Constitution,  they  cannot  be  construed  to  mean  the 
same  thing  with  the  word  *  treaty.'     They  evidently  mean  something  more, 

168 


THE  AGREEMENT-MAKING  POWER  169 

in-chief  of  the  army  and  navy;  and  in  the  exercise  of 
these  functions,  he  may,  incidentally,  enter  into  certain 
kinds  of  agreements  with  foreign  states.  Furthermore, 
the  power  of  regulating  foreign  commerce,  copyright  privi- 
leges, and  postal  affairs  is  conferred  upon  Congress ;  and, 
incidental  to  the  exercise  of  these  powers,  that  body  may 
authorize  the  President  to  make  still  other  sorts  of  inter- 
national agreements. 

KINDS   OF   AGREEMENTS 

From  these  considerations  it  follows  that  the  subject 
naturally  divides  itself  into  two  main  divisions:  (1)  simple 
executive  agreements,  i.e,,  those  which  the  President  makes 
on  his  own  authority,  and   (2)   agreements  made  by  the 
President,  or  his  agents,  under  the  authority  of  the  law- 
making  power,    and   acting   either   through   treaties    or 
Congressional  legislation.     The  first  main  class  may  be 
subdivided   into   those   agreements   which   the   President 
makes  by  virtue  of  his  diplomatic  powers  and  those  which 
he  makes  by  virtue  of  his  position  as  commander-in-chief 
of  the  army  and  navy.    There  are  cases,  however,  in  which 
a  given  agreement  may  be  made  under  both  of  these  powers, 
so  that  the  two  classes  tend  to  overlap.    The  second  main 
category  of  agreements,  i.e.,  those  authorized  by  law,  may 
be  subdivided  according  to  subject  matter  into  such  groups 
as  commercial,  copyright,  and  postal  agreements.    Agree- 
ments of  either  of  these  two  main  kinds  may  ordinarily  be 
made  by  the  President  himself.    But  in  some  instances  they 
may  be  made  on  his  behalf  by  the  Secretary  of  State  or  the 
Postmaster-General,  or  by  a  military  or  naval  commander. 
An  executive  agreement  entered  into  at  an  early  period 
of  our  history  under  the  powers  of  the  President  as  oom- 

and  were  designed  to  make  the  prohibition  more  comprehensive.  .  .  .  The 
word  *  agreement'  does  not  necessarily  import  any  direct  and  express  stipula- 
tion; nor  is  it  necessary  that  it  should  be  in  writing.  If  there  is  a  verbal 
understanding  to  which  both  parties  have  assented,  and  upon  which  both  are 
acting,  it  is  an  'agreement.'  '' 


170  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

mander-in-chief  of  the  navy  was  the  Rush-Bagot  agreement 
of  1817  between  the  United  States  and  Great  Britain, 
whereby  the  two  powers  undertook  mutually  to  limit  the 
extent  of  their  naval  armaments  on  the  Great  Lakes. ^  This 
is  an  example  of  the  President's  agreement-making  power 
as  commander-in-chief  during  time  of  peace.  More  numer- 
ous instances  of  this  power  arise,  however,  during  time  of 
war,  and  include  agreements  relating  to  the  exchange  of 
prisoners,  armistices,  and  preliminary  agreements  as  a 
basis  for  peace.  An  example  of  an  agreement  made  under 
the  authority  of  the  President  as  commander-in-chief  of 
the  army  was  that  of  July  29,  1882,  between  the  United 
States  and  Mexico  providing  for  the  reciprocal  passage  of 
troops  across  the  border  in  pursuit  of  savage  Indians.^  The 
President  has  also  assumed  on  several  occasions  to  exercise 

^Malloy,  Treaties,  etc.,  628.  Although  the  Senate  subsequently  advised  and 
consented  to  the  ratification  of  this  agreement,  and  it  was  ratified  and  pro- 
claimed by  the  President,  it  "was  at  fibrst  a  mere  exchange  of  notes;  and  it 
does  not  appear  that  ratifications  were  ever  exchanged.  This ,  agreement  has 
at  times  given  rise  to  some  dissatisfaction  on  the  ground  that  it  tended  to 
retard  ship-building  on  the  Great  Lakes.  Doubt  was  expressed  in  1892  whether 
the  convention  was  still  in  force.  President  Harrison  referred  the  question 
to  Secretary  Foster,  who,  after  reviewing  the  agreement's  entire  history,  re- 
ported that  it  was  still  binding.  See  report.  Sen.  Ex.  Doc.  9,  52d  Cong.,  2d 
sess.  However,  Mr.  Foster  observes:  *'It  s^ems  evident  .  .  .  that  at  no  time 
during  the  negotiations  or  at  its  completion  did  the  arrangement  in  question 
take  the  shape  of  a  formal  international  treaty.  As  between  the  United 
States  and  Great  Britain  it  never  passed  beyond  the  stage  of  an  agreement 
by  exchange  of  notes.  ...  No  exchange  of  ratifications  took  place."  Hid., 
13.  See  also  address  by  C.  H.  Butler  in  Proceedings  of  Lake  MohonTc  Con- 
ference on  International  Arbitration,  1910,  107-112,  where  it  is  related  that 
"so  carefully  has  the  United  States  adhered  to  this  agreement  that  when  the 
Chicago  World's  Fair  wanted  to  have  a  naval  vessel  of  the  United  States 
anchored  in  front  of  the  Exposition  grounds  as  an  exhibit,  our  government 
refused  to  allow  any  vessel  to  go  through  the  locks  for  fear  it  might  be 
regarded  as  an  infraction  of  the  treaty.  The  result  was  that  a  brick  and 
mortar  battleship  was  built  on  piles  in  the  harbor  of  Chicago  and  mounted 
with  imitation  guns."  As  a  matter  of  fact,  however,  the  agreement  has  not 
been  as  strictly  observed  as  Mr.  Butler's  remarks  might  be  construed  to 
imply.  See  Bigelow,  Breaches  of  Anglo-American  Treaties,  32-4.  In  1898 
the  American  members  of  the  Joint  High  Commission  were  instructed  to 
secure  a  revision  of  the  Eush-Bagot  agreement  so  as  to  allow  warships  to  be 
built  on  the  Great  Lakes,  provided  they  were  not  to  be  used  thereon.  House 
doc.  471,  56th  Cong.,  1st  sess.  (1900). 

*Malloy,  op  cit.,  1144.  A  memorandum  attached  to  this  agreement  recited 
that  "as  .  .  .  the  constitution  of  the  United  States  empowers  the  President 
to  allow  the  passage  without  the  consent  of  the  Senate,  this  agreement  does 
not  require  the  sanction  of  the  Senate,  and  will  begin  to  take  effect  twenty 


THE  AGREEMENT-MAKING  POWER  171 

the  power  of  agreeing  with  foreign  governments  to  allow 
the  passage  of  their  troops  across  our  territory.^ 

Executive  agreements  sometimes  prove  to  be  permanent 
arrangements,  but  in  most  cases  they  are  intended  only  to 
serve  until  more  regular  arrangements  covering  substan- 
tially the  same  matters  can  be  made  by  treaty.  These  tem- 
porary, or  provisional,  agreements  are  sometimes  called 
protocols  or  modi  vivendi.  Thus,  on  February  15,  1888,  a 
notable  modus  vivendi  was  entered  into  by  the  United 
States  and  Great  Britain  concerning  American  fishing 
rights  along  the  coast  of  British  North  America.^  Again, 
on  August  12,  1898,  the  American  secretary  of  state  and 
the  French  ambassador  at  Washington,  the  latter  acting  on 
behalf  of  the  government  of  Spain,  signed  a  protocol  of 
agreement  embodying  specifications  of  a  basis  of  peace 
between  the  two  governments.  This  instrument  contained 
such  important  provisions  as  those  whereby  Spain  relin- 
quished all  claim  of  sovereignty  over  Cuba  and  ceded  to 
the  United  States  the  island  of  Porto  Rico ;  and  these  pro- 
visions were  subsequently  incorporated  in  the  definitive 
treaty  of  peace,  whose  ratification  was  advised  and  con- 
sented to  by  the  Senate.^  In  1901 — ^to  cite  one  more  illus- 
tration— the  United  States,  together  with  the  other  prin- 
cipal powers,  signed  a  protocol  with  China,  embodying 
terms  for  the  settlement  of  the  troubles  growing  out  of  the 
Boxer  uprising,  and  imposing  considerable  obligations  on 
the  Chinese  government. 

AGREEMENTS  UNDER  CONGRESSIONAL  AUTHORIZATION 

In  numerous  instances  Congress  has  passed  acts  author- 
izing the  President  to  enter  into  international  agreements 

days  after  date/'  Ibid.,  1145.  See  also  A.  S.  Hershey,  ** Incursions  into 
Mexico  and  the  Doctrine  of  Hot  Pursuit,"  Am,  Jour.  Int.  Law,  XIII, 
557-69   (July,  1919). 

*See  Moore,  Digest  of  Interriational  Lam,  II,  389-400,  and  Tucker  v.  Alex- 
androff,  183  U.  S.,  435,  459.    • 

'  Malloy,  Treaties,  etc.,  738-9. 

'Ibid.,  1688,  1691. 


172  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

not  requiring  submission  to  the  Senate;  and  under  this 
authority  he  has  made  many  agreements  relating  to  trade 
marks,  copyrights,  reciprocal  commercial  privileges,  the 
acquisition  of  territory,  and  other  matters.^  Since  1871  the 
Indian  tribes  have  been  dealt  with,  not  through  treaties, 
but  through  executive  agreements  which  have  been  pre- 
sented to  Congress  for  approval.^  From  an  early  period, 
postal  agreements  have  been  made  with  foreign  countries, 
and  under  an  act  of  1872  ^  the  Postmaster-General  is 
authorized,  by  and  with  the  advice  and  consent  of  the 
President,  to  negotiate  and  conclude  postal  treaties  or  con- 
ventions. Under  this  authorization,  several  such  conven- 
tions have  been  entered  into.  Despite  the  language  of  the 
act,  these  conventions  cannot  properly  be  called  treaties. 
Executive  agreements  authorized  by  prior  acts  of  Congress 
may  be  considered  as  agreements  made  with  the  advice  and 
consent  of  Congress,  instead  of  the  Senate,  the  advice  and 
consent  in  this  case  being  given  before,  instead  of  after, 
the  agreement  is  made,  and  by  a  mere  majority  instead  of 
a  two-thirds  vote.  In  making  agreements  authorized  by 
acts  of  Congress,  the  President  may  be  considered  as  exer- 
cising his  constitutional  power  of  taking  care  that  the  laws 
are  faithfully  executed.** 

The  legality  of  agreements  entered  into  by  the  Executive 
under  the  authority  of  certain  acts  of  Congress  has  been 
upheld  by  the  Supreme  Court.  Thus  the  McKinley  tariff 
act  of  October  1,  1890,  authorized  the  President  to  exercise 
powers,  under  certain  conditions,  which  resulted  in  the 
making  of  reciprocal  tariff  agreements  with  other  countries, 
and  to  suspend,  by  proclamation,  the  free  introduction  into 
this  country  of  certain  articles  from  countries  imposing 

*For  a  detailed  account  of  these  agreements,  see  Crandall,  Treaties,  Their 
Making  and  Enforcement  (2d  ed.),  chap.  IX. 

*  Crandall,  op.  cit.,  134. 

'U.  S.  Eevised  Statutes,  sect.  398.  Such  postal  agreements  have  been  held 
valid  by  the  Attorney-General  in  spite  of  the  constitutional  provision  relating 
to  treaties.     19  Op.  U.  S.  Atty.-Gten.,  513. 

*  Constitution,  Art.  II,  Sect.  3. 


THE  AGREEMENT-MAKING  POWER  178 

unequal  duties  upon  the  importation  of  the  products  of  the 
United  States.  The  court  upheld  the  constitutionality  of 
the  act,  remarking  that  the  measure  **is  not  liable  to  the 
objection  that  it  transfers  legislative  and  treaty-making 
power  to  the  President.'*  ^  With  reference  to  a  commercial 
agreement  with  France  made  by  the  executive  under  the 
authority  of  the  Dingley  tariff  act  of  1897,  the  Supreme 
Court  declared  that,  while  such  agreement  **was  not  a 
treaty  possessing  the  dignity  of  one  requiring  ratification 
by  the  Senate  of  the  United  States,  it  was  an  international 
compact,  negotiated  between  the  representatives  of  two 
sovereign  nations,  and  made  in  the  name  and  on  behalf  of 
the  contracting  countries  and  was  proclaimed  by  the  Presi- 
dent. If  not  technically  a  treaty  requiring  ratification, 
nevertheless  it  was  a  compact  authorized  by  the  Congress 
of  the  United  States,  negotiated  and  proclaimed  under  the 
authority  of  its  President.  We  think  such  a  compact  was 
a  treaty  under  the  circuit  court  of  appeals  act. ' '  ^ 

In  nature  and  importance  of  subject-matter,  executive 
agreements  cannot  always  be  distinguished  from  regular 
treaties.^  This  was  illustrated  in  connection  with  the  con- 
troversy which  arose  between  President  Eoosevelt  and  the 
Senate  in  1905  regarding  the  arrangement  with  Santo  Do- 
mingo whereby  the  United  States  took  over  the  collection 

*  Field  V.  Clark,  143  U.  S.,  649. 

»Altman  v.  U.  S.,  224  U.  S.,  583  (1912).  On  this  case  see  editorial  note 
in  Am.  Jomr.  Internat.  Law,  VI,  716-19  (July,  1912),  where  it  is  pointed  out 
that  if  Congress  can  authorize  the  President  to  make  reciprocal  tariff  agree- 
ments without  submission  to  the  Senate  a  general  treaty  of  arbitration  might 
authorize  the  President  to  make  special  executive  agreements  in  particular 
cases.  See  also  C.  H.  Butler,  *  *  The  Eolations  of  Congress  to  General  Arbitra- 
tion,''  Proceedings  of  Lake  Mohonk  Conference  on  International  Arbitration, 
1912,  pp.  202-4. 

"'It  may  be  proper  to  observe,*'  says  Secretary  Foster,  **that  the  resort 
of  an  exchange  of  diplomatic  notes  has  often  sufficed,  without  any  further 
formality  of  ratification  or  exchange  of  ratifications,  or  even  of  proclamation, 
to  effect  purposes  more  usually  accomplished  by  the  more  complex  machinery 
of  treaties.''  Report  on  the  Eush-Bagot  Agreement,  December,  1892,  Sen. 
Ex.  Doc.  9,  52d  Cong.,  2d  sess.,  p.  13.  This  is  not  equivalent  to  saying  that 
the  nature  of  the  subject  matter  of  treaties  and  of  executive  agreemente  may 
be  entirely  identical,  but  merely  that  the  same  or  similar  purposes  may  be 
effected  by  the  two  methods. 


174  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

of  the  custom  duties  of  that  island.  The  President,  being 
unable  to  secure  the  Senate 's  approval  of  a  treaty  effecting 
this  arrangement,  nevertheless  carried  out  the  plan  by- 
means  of  simple  agreement.  Not  until  two  years  later  did 
the  Senate  consent  to  the  ratification  of  a  treaty  embodying 
substantially  the  same  terms  as  the  agreement.  Similarly, 
the  Nicaraguan  convention  of  1911  failed  to  receive  Sena- 
torial approval,  but,  under  an  executive  agreement  similar 
to  that  of  1905  with  Santo  Domingo,  the  objects  of  the  con- 
vention were  substantially  attained.^  In  these  cases,  as  in 
some  others,  failure  to  secure  the  Senate's  approval  did 
not  tie  the  President's  hands;  certainly  it  did  not  prevent 
him  from  carrying  out  the  foreign  policy  upon  which  he 
was  bent.2 

AGEEEMENTS  UNDEE  TEEATY  AUTHOEIZATION 

In  some  instances  the  President,  in  the  exercise  of  admin- 
istrative power,  enters  into  particular  agreements  without 
the  consent  of  the  Senate,  but  in  accordance  with  the  pro- 
visions of  general  treaties  which  have  previously  received 
the  advice  and  consent  of  that  body.  Thus  numerous  extra- 
dition treaties  have  been  approved  by  the  Senate,  enumer- 
ating the  extraditable  offenses ;  but  each  particular  case  of 
the  surrender  of  a  fugitive  from  justice  involves  a  special 
international  agreement  entered  into  by  the  Executive 
alone.  As  Chief  Justice  Taney  pointed  out  in  an  early 
case:  *^From  the  nature  of  the  transaction  the  act  of  de- 
livery [of  the  fugitive]  necessarily  implies  a  mutual  agree- 
ment.'' ^  It  has  never  been  considered  necessary  that  such 
an  agreement  receive  the  consent  of  the  Senate.  Never- 
theless, in  other  instances  of  a  similar  kind  the  Senate  has 
shown  a  disinclination  to  allow  the  President  a  free  hand 
in  making  special  agreements.    Thus  in  the  case  of  a  pro- 

*  Ogg,  National  Progress,  257. 

*Cf.  Eeinsch,  American  Legislatures  and  Legislative  Methods,  102-4. 

■Holmes  v.  Jennison  et  al.,  14  Pet.,  540. 


THE  AGREEMENT-MAKING  POWER  175 

posed  arbitration  treaty  with  Great  Britain,  presented  for 
approval  in  1897,  the  Senate  proposed  to  amend  by  requir- 
ing that  any  agreement  to  submit  a  difference  to  arbitration 
under  the  treaty  should  **be  communicated  by  the  President 
of  the  United  States  to  the  Senate  with  his  approval,  and 
be  concurred  in  by  two-thirds  of  the  Senators  present/'  ^ 

A  convention  adopted  at  the  Hague  Conference  of  1899 
established  a  permanent  court  of  arbitration  and  reserved 
to  the  signatory  powers  the  right  of  concluding  general  or 
particular  agreements  extending  obligatory  arbitration  to 
cases  in  which  they  might  deem  it  to  be  applicable.  In 
pursuance  of  this  provision,  Secretary  Hay  negotiated  sev- 
eral general  arbitration  treaties  providing  for  submission 
to  the  permanent  Hague  court  of  certain  differences  be- 
tween the  contracting  parties  which  were  found  difficult  ov 
impossible  to  settle  by  diplomacy.  These  treaties  also 
provided  that  in  each  case,  before  appealing  to  the  Hague 
court,  the  contracting  parties  should  conclude  a  compromis, 
or  special  agreement,  defining  the  matter  in  dispute  and 
the  powers  of  the  arbitrators.  When  these  Hay  treaties 
were  laid  before  it,  the  Senate  substituted  the  word 
** treaty '^  for  the  word  ** agreement,''  in  order  to  make 
certain  that  it  would  always  be  consulted.  Dissatisfied  with 
the  treaties  as  thus  amended,  President  Roosevelt  declined 
to  carry  the  project  farther.  Profiting  by  this  experience, 
Secretary  Root  negotiated,  in  1908,  several  general  arbitra- 
tion treaties  which  reserved  to  the  Senate  the  right  to 
advise  and  consent  to  all  special  agreements  made  under 
such  treaties ;  ^  and  the  Senate  promptly  consented  to  their 
ratification. 

In  1911  a  controversy  arose  between  President  Taft  and 
the  Senate  over  a  new  group  of  general  arbitration  treaties. 
Following  the  Root  treaties  of  1908,  these  instruments  pro- 

*  Senate  Executive  Journal,  May  5,  1897,  reprinted  in  Senate  document  26, 
66th  Cong.,  Ist  sess.,  p.  278.  This  treaty,  after  being  amended,  failed  to 
receive  the  necessary  two-thirds  vote  in  the  Senate. 

*See  Malloy,  Treaties,  etc.,  814. 


176  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

vided  that  special  agreements  made  under  them  should  in 
all  cases  be  submitted  to  the  Senate  for  its  advice  and  con- 
sent. They  also  provided,  however,  that,  in  the  event  of 
disagreement  as  to  whether  the  matter  in  controversy  was 
subject  to  arbitration,  the  question  should  be  submitted  for 
decision  to  a  joint  commission  of  inquiry.  To  this  pro- 
vision the  Senate  objected  on  the  ground  that  it  encroached 
upon  that  body's  constitutional  treaty-making  power. 
Consent  to  ratification  was  withheld,  and  the  treaties  con- 
sequently never  became  operative. 

In  the  cases  of  the  Hay  and  Taft  arbitration  treaties, 
the  Senate  succeeded  in  preventing  what  it  deemed  to  be 
encroachments  upon  its  constitutional  treaty-making  power. 
That  body's  contention,  nevertheless,  that  a  grant  of  its 
consent  to  the  ratification  of  the  treaties  would  have  been 
an  unconstitutional  delegation  of  the  treaty-making  power 
is  hardly  borne  out  by  previous  and  subsequent  constitu- 
tional practice.^  The  Senate  itself  has  even  taken  the 
initiative  in  inserting  in  a  treaty  a  provision  authorizing 
the  President  to  enter  into  a  mere  executive  agreement 
through  exchange  of  notes.^  The  error  of  the  Senate's 
view  arises  from  the  mistaken  supposition  that  the  Presi- 
dent, in  making  special  agreements,  is  acting  specifically 

* Cf.  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.,  698,  at  p.  714,  where  the  court  said: 
**It  is  no  new  thing  for  the  law-making  power,  acting  either  through  treaties 
made  by  the  President  and  the  Senate,  or  by  the  more  common  method  of 
acts  of  Congress,  to  submit  the  decision  of  questions,  not  necessarily  of  judicial 
cognizance,  either  to  the  final  determination  of  executive  officers,  or  to  the 
decision  of  such  officers  in  the  first  instance,  with  such  opportunity  for  judicial 
review  of  their  action  as  Congress  may  see  fit  to  authorize  or  permit." 

"Thus  the  Senate  consented  to  ratification  of  the  treaty  of  1916  whereby 
Denmark  ceded  the  Danish  West  Indies  to  the  United  States,  on  the  under- 
standing that  the  United  States  did  not  assume  any  responsibility  with  respect 
to  the  property  of  the  Danish  national  church  in  the  islands  and  that  this 
matter  would  be  made  the  subject  of  an  exchange  of  notes  between  the  two 
governments.  Such  exchange  of  notes  took  place  on  January  3,  1917.  39 
Stat,  at  L.,  pt.  2,  pp.  1716-17.  Furthermore,  Art.  8  of  the  Haytian  treaty  of 
Sept.  16,  1915,  provided  that  Hayti  shall  not  increase  its  public  debt  except 
by  previous  agreement  with  the  President  of  the  United  States.  This  ' '  phrase- 
ology is  no  doubt  due  to  the  desire  to  remove  any  question  that  such  an 
agreement  can  be  made  by  the  President  as  an  executive  act  as  distinct  from 
an  agreement  by  the  Government  of  the  United  States  requiring  the  advice 
and  consent  of  the  Senate.*'    Am,  Jour.  Intemat.  Law,  X,  863  (Oct.,  1916). 


THE  AGREEMENT-MAKING  POWER  177 

in  pursuance  of  his  constitutional  power  to  negotiate  trea- 
ties. If  this  were  true,  all  such  agreements  would  require 
the  consent  of  the  Senate.  In  reality,  however,  the  Presi- 
dent, in  making  such  agreements,  is  acting  under  his 
general  power  of  conducting  the  foreign  relations  of  the 
nation;  in  the  exercise  of  this  proper  power  it  frequently 
becomes  necessary  for  him  to  enter  into  international  agree- 
ments of  various  degrees  of  formality  or  informality. 
Moreover,  as  the  Senate  minority  report  on  the  Taft  arbi- 
tration treaties  of  1911  pointed  out,  the  power  to  decide 
whether  a  particular  dispute  was  or  was  not  justiciable  as 
defined  by  the  treaty  was  not  a  delegation  of  treaty  power, 
but  a  delegation  of  judicial  power  *^to  find  whether  the 
particular  case  is  one  that  the  President  and  Senate  have 
said  shall  be  arbitrated.''  It  was,  therefore,  a  delegation 
of  the  power  to  determine  a  question  of  law  or  of  fact 
and  not  of  policy.^ 

SIMPLE  EXECUTIVE  AGREEMENTS 

Even  though  the  Senate  may  sometimes  check  the  Presi- 
dent in  making  special  agreements,  in  cases  in  which  such 
agreements  rest  upon  authorization  contained  in  general 
treaties,  the  power  of  the  President  in  general  is  thereby 
curtailed  to  a  comparatively  slight  extent ;  for  many  inter- 
national agreements  entered  into  by  the  President  or  the 
Secretary  of  State  rest  upon  the  former's  general  power 
to  adjust  disputes  which  are  incidental  to  the  conduct  of 
foreign  relations,  and  may  consequently  be  entered  into 
without  either  the  prior  authorization  or  the  subsequent 
approval  of  the  Senate.  Some  of  these  may  be  mere 
** gentlemen's  agreements,"  and  they  are  not  necessarily 
reduced  to  writing;  ^  others  may  be  effected  by  an  exchange 

*  Sen.  doc.  98,  62d  Cong.,  1st  sess.,  p.  9. 

'  Cf .  the  statement  of  President  Wilson  at  the  White  House  conference  with 
the  Senate  Committee  on  Foreign  Relations:  "It  [the  cable  convention] 
was  not  a  formally  signed  protocol,  but  we  had  a  prolonged  and  interesting 
discussion  on  the  subject  and  nobody  has  any  doubt  as  to  what  was  agreed 
upon.''    Hearings  on  the  Treaty  of  Peace  with  Germany,  506. 


178  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

of  notes  in  identical  form,  and  may  have  important  conse- 
quences, as,  for  example,  the  agreements  of  1899  and  1900 
concerning  the  '* Open-Door''  policy  in  China,  and  the  Root- 
Takahira  Agreement  of  1908  and  the  Lansing-Ishii  Agree- 
ment of  1917,  which  undertook  to  define  our  attitude  toward 
current  questions  in  the  Far  East.  Moreover,  despite  the 
defeat  of  the  general  arbitration  treaties,  the  President, 
by  virtue  of  his  diplomatic  powers,  is  able  to  refer  to  arbi- 
tration international  disputes  which  he  finds  himself  unable 
to  settle  through  ordinary  diplomatic  negotiations.  The 
President  has  entered  into  numerous  agreements  for  the 
settlement  of  pecuniary  claims,  sometimes  under  the  author- 
ization of  treaty  provision,  but  frequently  by  mere  ex- 
ecutive agreement,  without  special  authorization.^  As  a 
rule,  such  executive  agreements  involve  the  settlement  of 
pecuniary  claims  against  foreign  govemments,^  and  no 
attempt  is  made  to  settle,  by  such  means,  pecuniary  claims 
against  the  United  States,  which  might  involve  the  appro- 
priation of  funds  by  Congress.  The  correct  attitude  in 
this  matter  was  illustrated  by  President  Wilson  in  a 
memorandum  attached  to  his  agreement  of  May,  1919,  with 
Premier  Lloyd-George  of  Great  Britain  regarding  the  dis- 
position of  the  former  German  ships.  **I  deem  it  my  duty,*' 
said  the  President,  *^to  state,  in  signing  this  document, 
that,  while  I  feel  confident  that  the  Congress  of  the  United 
States  will  make  the  disposal  of  the  funds  mentioned  [in 
the  agreement],  I  have  no  authority  to  bind  it  to  that 
action,  but  must  depend  upon  its  taking  the  same  view  of 
the  matter  that  is  taken  by  the  joint  signatories  of  this 
agreement. ' '  ^ 

Although  a  simple  executive  agreement  cannot,  at  least 
from  the  constitutional  point  of  view,  bind  the  Government 

*  Cf .  Reinsch,  Am.  Legis.  and  Legis.  Methods,  102. 

'Thus  in  1903  the  claims  of  American  citizens  against  Venezuela  were  sub- 
mitted by  the  President  to  the  Hague  Court  under  an  agreement  which  was 
not  laid  before  the  Senate. 

•  Cong.  Record,  vol.  59,  p.  3429,  Feb.  21,  1920. 


THE  AGREEMENT-MAKING  POWER  179 

of  the  United  States  to  the  payment  of  money,  the  President 
may  enter  into  an  agreement  whose  execution  is  absolutely 
conditioned  on  an  appropriation  by  Congress.  Thus  in 
1896  an  agreement  was  arrived  at  by  the  Secretary  of  State 
and  the  British  Ambassador  at  Washington  regarding  the 
expulsion  from  the  United  States  to  Canada  of  the  refugee 
Canadian  Cree  Indians,^  and  shortly  thereafter  Congress 
passed  an  appropriation  to  carry  the  agreement  into  effect.* 
Ordinary  prudence,  however,  would  suggest  that  such  an 
agreement  should  seldom  be  made  except  with  the  distinct 
understanding  that  execution  is  dependent  upon  Congres- 
sional action,  or,  better,  except  when  Congress  has  author- 
ized the  agreement  either  directly  or  indirectly,  or  has  in 
some  way  evidenced  its  willingness  to  make  the  necessary 
appropriation.  Thus  in  1850,  by  a  simple  executive  agree- 
ment, Horse-shoe  Reef  in  Lake  Erie  was  ceded  to  the  United 
States  by  Great  Britain  on  the  condition  that  the  United 
States  should  erect  and  maintain  a  lighthouse  thereon.^ 
Congress  had  in  the  previous  year  made  an  appropriation 
for  this  purpose,  and  this  appropriation  was  renewed  in 
the  following  year  and  again  in  1854,  and  the  lighthouse  was 
finally  erected  in  1856.  Such  subsequent  appropriation 
act,, or  any  Congressional  enforcement  legislation,  is  equiva- 
lent to  Congressional  sanction  of  the  agreement.  By 
analogy,  it  may  be  noted  that  the  Supreme  Court  has  held 
that  under  the  provision  of  the  Constitution  requiring 
Congressional  consent  to  compacts  between  states  such 
consent  may  be  given  subsequent  to  the  making  of  the  com- 
pact.^ Again,  under  the  Piatt  amendment  of  1901,^  pro- 
viding for  the  sale  or  lease  by  Cuba  to  the-  United  States 
of  lands  necessary  for  coaling  or  naval  stations,  the  Presi- 
dent made  an  agreement  with  Cuba,  without  submission  to 

*  Senate  Eept.  821,  54  Cong.,  1st  sess. 

»  U.  S.  Stat,  at  L.,  vol.  29,  p.  117. 

•Malloy,  Treaties,  etc.,  663. 

^Virginia  v.  Tennessee,  148  U.  S.,  503,  pp.  521-22. 

'31  Stat,  at  L.,  897. 


180  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  Senate,  providing  for  the  payment  to  that  republic  of 
an  annual  sum  of  money  for  the  use  of  the  land  so  leased.^ 

By  the  terms  of  the  Constitution,  treaties  made  under 
the  authority  of  the  United  States  are  a  part  of  the  supreme 
law  of  the  land.  This,  however,  is  not  ordinarily  true  of  a 
simple  executive  agreement  which  is  not  made  under  the 
authority  of  a  previous  treaty  or  act  of  Congress.^  When, 
however,  the  President  enters  into  an  agreement  which  is 
authorized  by  such  prior  treaty  or  Congressional  act,  the 
agreement  has  the  force  of  law  equally  with  the  prior  treaty 
or  act.  Thus  the  Supreme  Court  has  held  that  a  section  of 
the  regulations,  or  protocol,  attached  to  the  international 
postal  treaty  of  Berne  (1874)  is  a  part  of  the  law  of  the 
land.^ 

CONCLUSION 

Frequent  resort  to  executive  agreements  is  undoubtedly 
open  to  objection.  In  contrast  with  treaties,  such  agree- 
ments may  be  entered  into  secretly;  and  the  dictates  of 
practical  expediency  may  sometimes  afford  a  plausible  ex- 
cuse for  maintaining  secrecy  where  a  more  far-sighted 
policy  would  avoid  it.    As  a  rule,  international  agreements, 

*Malloy,  Treaties,  etc.,  360. 

'Secretary  Knox  expressed  the  opinion  that  an  exchange  of  notes  setting 
forth  an  understanding  as  to  the  meaning  of  a  treaty  "would  not,  so  far  as 
the  internal  affairs  of  this  Government  are  concerned,  have  the  status  either 
of  a  treaty  or  of  a  law,  but  would  be  merely  an  executive  interpretation  of  the 
treaty  and  of  the  Federal  Statutes.  This  would  not  be  binding  upon  the  courts 
of  this  country,  which  might  at  any  time  disregard  the  agreement  incor- 
porated in  the  notes,  in  which  case  it  would  not  be  possible  for  the  [State] 
Department  to  control  their  decision."  For.  Bels.  of  U.  S.,  1910,  p.  732. 
With  this  statement,  compare  the  following  colloquy  which  took  place  during 
the  testimony  of  ex-Secretary  Lansing  before  the  Senate  Committee  on  Foreign 
Eelations  at  the  hearings  on  the  treaty  of  peace  with  Germany: 

**  Senator  Brandegee.  Has  the  so-called  Lansing-Ishii  agreement  any  binding 
force  on  this  country? 

* 'Secretary  Lansing.    No. 

'  *  Senator  Brandegee.  It  is  simply  a  declaration  of  your  policy,  or  the  policy 
of  this  Government,  as  long  as  the  President  and  the  State  Department  want 
to  continue  that  policy,  I  suppose? 

'' Secretary  Lansing.  Exactly,  in  the  same  way  that  the  Root-Takahira 
agreement  is. ' '    Hearings,  219. 

'  Cotzhausen  v.  Nazro,  107  U.  S.,  215, 


THE  AGRBEMENT-MAKING  POWER  181 

as  well  as  treaties,  should  be  entered  into  only  in  such  a 
way  that  the  salutary  influence  of  public  opinion  can  be 
brought  to  bear  upon  them;  the  country  should  not,  as  a 
rule,  be  bound  bv  the  stipulations  of  executive  flpT-PPTnpnf,^ 
withouFits  knowledge  and  without  opportunity  to  protest.^ 
Sometimes  information  regarding  proposed  agreements  is 
intentionally  permitted  to  leak  out  during  the  course  of 
negotiations  in  order  to  sound  public  opinion  upon  the 
project.  Frequently,  however,  it  is  deemed  impracticable 
to  make  the  agreement  public  until  after  it  has  been  con- 
cluded. Congress,  or  one  of  its  branches,  may  pass  reso- 
lutions asking  for  information  concerning  a  rumored 
executive  agreement.^  Such  resolutions,  although  usually 
requesting  the  information  only  *4f  not  incompatible  with 
the  public  interest,"  are,  indeed,  sometimes  passed  for 
partisan  reasons,  with  a  view  to  embarrassing  the  admin- 
istration. On  the  other  hand,  they  may  be  adopted  in  entire 
good  faith,  and  may  serve  a  distinctly  useful  purpose. 

As  we  have  seen,  it  is  not  always  easy  to  distinguish 
treaties  and  executive  agreements  with  reference  to  their 
subject-matter,  so  that  these  two  forms  of  international 
agreement  may,  on  occasion,  constitute  alternative  modes 
of  arriving  at  the  same  object.  A  President  or  Secretary 
of  State  seldom  wishes  to  run  the  gauntlet  of  the  Senate 
unless  necessary;  he  is  likely  to  have  found  by  experience 
that  consulting  the  upper  house  jeopardizes  the  success  of 
the  project,  and  he  may  consequently  be  minded  to  rely  as 
largely  as  possible  upon  executive  agreements  in  lieu  of 

*  A  resolution  was  passed  by  the  House  of  Representatives  in  1900  directing 
the  secretary  of  state  to  inform  the  House  *  *  what  truth  there  is  in  the  charge 
that  a  secret  alliance  exists  between  the  Eepublic  of  the  United  States  and 
the  Empire  of  Great  Britain."  Secretary  Hay's  answer,  transmitted  by  the 
President,  declared  that  there  was  no  truth  in  the  charge  that  such  a  secret 
alliance  existed,  and  added  that  *'no  form  of  secret  alliance  is  possible  under 
the  Constitution  of  the  United  States,  inasmuch  as  treaties  require  the  advice 
and  consent  of  the  Senate,  and,  finally,  that  no  secret  alliance,  convention, 
arrangement  or  understanding  exists  between  the  United  States  and  any  other 
nation.'*    House  doc.  458,  56th  Cong.,  Ist  sess.,  p.  2. 

'For  examples  of  such  Congressional  requests,  see  House  rept.  2909,  57th 
Cong.,  2nd  sess.  and  Cong   Record,  vol.  59,  p.  3071,  Feb.  14,  1920. 


182  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

treaties.  If,  however,  any  large  part  of  our  important 
international  understandings  comes  to  be  embodied  in 
executive  agreements,  the  provision  of  the  Constitution  re- 
quiring the  submission  of  treaties  to  the  Senate  will,  from 
the  standpoint  of  its  general  intent,  be  rendered  largely 
nugatory.  Admitting  the  highest  degree  of  wisdom  and 
patriotism  that  can  be  claimed  for  our  Presidents  and  secre- 
taries of  state,  it  may  still  be  said  that  some  executive 
agreements  that  have  been  entered  into  would  probably 
have  been  improved  by  the  searching  examination  of  their 
bearings  and  implications  which  they  would  have  received 
if  they  had  been  submitted  to  the  Senate. 

Despite  these  objections,  however,  the  usefulness  and 
practical  necessity  of  executive  agreements  as  incidental 
aids  to  the  conduct  of  diplomatic  business  is  apparent. 
Many  occasions  arise  in  the  course  of  our  foreign  relations 
upon  which  difficulties  of  a  delicate  nature  may  be  more 
efficiently  handled  by  the  President  through  executive 
agreements  than  by  the  treaty-making  body.  To  require 
that  all  international  understandings  be  submitted  to  the 
Senate  would  be  burdensome  and  impracticable.  It  would 
not  be  feasible  to  conduct  our  foreign  relations  with  any 
degree  of  efficiency  under  such  a  rule. 

In  the  absence  of  express  constitutional  limitation,  the 
United  States,  in  the  conduct  of  its  international  relations, 
may  be  regarded  as  endowed  with  all  powers  ordinarily 
exercised  by  other  sovereign  and  independent  members  of 
the  family  of  nations  in  carrying  on  foreign  intercourse.^ 
As  was  pointed  out  in  1870  by  the  territorial  court  of  Wash- 
ington, speaking  of  a  convention  entered  into  between  the 
United  States  and  Great  Britain  concerning  the  boundary 
line  between  their  respective  possessions:  **Such  conven- 

*Cf.  the  view  of  some  writers  that  the  treaty-making  power  of  the  United 
States  is  not  only  derived  from  the  Constitution  but  is  possessed  "as  an 
attribute  of  sovereignty."  C.  H.  Butler,  The  Treaty-MaUng  Power  of  the 
United  States,  I,  5.  This  view,  however,  is  distinct  from  that  above  stated 
and  is  not  accepted  by  the  present  writer. 


THE  AGREEMENT-MAKING  POWER  183 

tions  are  not  treaties  within  the  meaning  of  the  Constitu- 
tion, and,  as  treaties,  supreme  law  of  the  land,  conclusive 
on  the  courts,  but  they  are  provisional  arrangements,  ren- 
dered necessary  by  national  differences  involving  the  faith 
of  the  nation  and  entitled  to  the  respect  of  the  courts.  The 
power  to  make  and  enforce  such  a  temporary  convention 
respecting  its  own  territory  is  a  necessary  incident  to  every 
national  government,  and  inheres  where  the  executive 
power  is  vested.  * '  ^  In  most  cases,  however,  it  is  not  neces- 
sary to  appeal  to  the  position  of  the  United  States  as  a 
nation  among  nations  in  order  to  justify  the  President's 
practice  of  entering  into  international  agreements  without 
the  consent  of  the  Senate.  As  a  rule,  ample  ground  may  be 
found  in  his  constitutional  powers  of  conducting  foreign 
relations,  acting  as  commander-in-chief  of  the  army  and 
navy,  and  seeing  that  the  laws  are  faithfully  executed. 

REFERENCES 

Barrett,  J.  F.,  "International  Agreements  without  the  Advice  and  Con- 
sent of  the  Senate,"  Tale  Law  Journal,  XV,  63-82  (Nov.,  1905). 

Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 
1917),  116-125. 

Crandall,  S.  B.,  Treaties,  their  Making  and  Enforcement  (2d  ed.,  New 
York,  1916),  Chaps.  VIII-IX. 

Foster,  J.  W.,  The  Practice  of  Diplomacy  (Boston,  1906),  Chap.  XVI. 

Hyde,  C.  C,  "Agreements  of  the  United  States  Other  Than  Treaties," 
Green  Bag,  XVII,  229-238. 

Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  V,  210-221. 

Moore,  J.  B.,  "Treaties  and  Executive  Agreements,"  Polit.  Sci.  Quar.,  XX, 
385-420  (Sept.,  1905). 

Willoughby,  W.  W.,  The  Constitutional  Law  of  the  United  States  (New 
York,  1910),  Chap.  XXXIII. 

*  Watts  V.  U.  S.,  1  Wash.  Terr.,  288. 


CHAPTER  XI 

THE  ENFORCEMENT   OF  TREATIES 

FROM  one  point  of  view,  the  enforcement  of  treaties 
is  largely  an  internal  or  municipal  function  and,  for 
the  most  part,  does  not  bear  primarily  upon  our  foreign 
relations.  Nevertheless,  the  rights  of  aliens  may  be  in- 
volved; and  nonenforcement  may  give  rise  to  increased 
activity  in  foreign  relations  through  reclamations  against 
our  Government  on  the  part  of  the  foreign  nation  with 
which  a  given  treaty  was  made.  Furthermore,  the  execution 
of  some  treaty  provisions  involves  direct  contact  with  for- 
eign governments.  Altogether,  the  subject  is  so  closely  con- 
nected with  the  general  conduct  of  our  foreign  relations 
that  it  may  properly  be  given  some  consideration. 

On  the  basis  of  the  method  of  enforcement,  the  provisions 
of  treaties  to  which  the  United  States  is  a  party  fall  into 
two  groups.  To  the  first  group  belong  those  provisions 
which  are  self-executing,  in  the  sense  that  they  do  not 
require  auxiliary  legislation  for  their  enforcement.  They 
not  only  etobody  an  international  obligation  but  also  con- 
stitute a  part  of  the  law  of  the  land,  and  can  be  carried 
into  execution  by  the  action  of  the  judicial  authorities,  just 
as  any  other  law  is  enforced.  Frequently  they  relate  to 
the  rights  of  aliens,  which  they  undertake  presently  to 
establish,  and  not  merely  to  promise  for  the  future. 

The  second  group  of  treaty  provisions  consists  of  those 
which  contemplate  executive  enforcement  or  require  aux- 
iliary legislation  before  they  can  be  effectuated.  Until 
such  legislation  is  enacted,  the  courts  ordinarily  decline  to 
participate  in  enforcement,  on  the  ground  that  the  questions 

184 


THE  ENFORCEMENT  OF  TREATIES  185 

involved  are  political  rather  than  justiciable.  These  pro- 
visions embody  an  international  compact  whereby  interna- 
tional obligations  are  incurred,  but  do  not  immediately 
constitute  parts  of  the  law  of  the  land.  The  distinction 
between  these  two  kinds  of  treaty  provisions,  with  refer- 
ence to  their  enforcement,  was  recognized  by  the  Supreme 
Court  in  an  early  case,  as  follows:  A  treaty  **is  to  be  re- 
garded in  courts  of  justice  as  equivalent  to  an  act  of  the 
legislature,  whenever  it  operates  of  itself  without  the  aid 
of  any  legislative  provision.  But  when  the  terms  of  the 
stipulation  import  a  contract — when  either  of  the  parties 
engages  to  perform  a  particular  act — the  treaty  addresses 
itself  to  the  political,  not  the  judicial  department ;  and  the 
legislature  must  execute  the  contract  before  it  can  become 
a  rule  for  the  court. ' '  ^ 

JUDICIAL  ENFORCEMENT 

As  previously  indicated,  in  most  cases  in  which  a  treaty  is 
self-executing  the  private  rights  of  aliens  are  presently 
established  "by  the  instrument's  provisions.  It  occasionally 
happens  that  such  provisions  are  strengthened  by  Congres- 
sional legislation,  especially  when  it  is  thought  desirable 
to  provide  penalties  for  violation  of  treaty  rights.  But  if 
the  treaty  provisions  are  of  such  a  character  as  to  be  self- 

•*  Foster  v.  Neilson,  2  Pet,  314  (1829).  See  also  In  re  Cooper,  143  U.  S., 
472,  where  the  court  declared  that  a  treaty  "is  a  law  of  the  land,  whenever 
its  provisions  prescribe  a  rule  by  which  the  rights  of  the  private  citizen  or 
subject  may  be  determined";  and  United  States  v.  De  la  Maza  Arredondo,  6 
Pet,  691,  where  the  court  observed  that  a  treaty  "is,  in  its  nature,  a  contract 
between  two  nations  and  the  legislature  must  execute  the  contract  before  it  can 
become  a  rule  for  the  court."  An  illustration  of  the  latter  principle  is  found 
in  the  tenth  article  of  the  treaty  of  1828  with  Prussia,  giving  Prussian  consuls 
the  assistance  of  local  authorities  in  settling  differences  between  the  captain 
and  crew  of  Prussian  vessels.  (Malloy,  op.  cit.,  1499).  In  a  case  of  this 
sort  which  arose  in  1845  Judge  Story,  federal  district  judge  for  the  state  of 
Massachusetts,  held  that  the  courts  and  magistrates  of  the  United  States  were 
not  empowered  to  carry  into  effect  this  provision  of  the  treaty  in  the  absence 
of  a  law  of  Congress  conferring  the  jurisdiction  upon  them.  James  Buchanan, 
as  secretary  of  state,  consequently  recommended  that  such  Congressional  legis- 
lation be  passed.  For  the  correspondence  in  the  case,  see  House  rept.  422, 
29th  Cong.,  1st  sess. 


186  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

operative,  ancillary  legislation  of  Congress  is  really  un- 
necessary, and  the  court  takes  the  treaty  as  the  rule  of  law 
governing  it  in  the  decision  of  the  case.  Thus  in  the  Head 
Money  Cases  the  Supreme  Court  said:  ^*But  a  treaty  may 
also  contain  provisions  which  confer  certain  rights  upon  the 
citizens  or  subjects  of  one  of  the  nations  residing  in  the 
territorial  limits  of  the  other,  which  partake  of  the  nature 
of  municipal  law,  and  which  are  capable  of  enforcement 
as  between  private  parties  in  the  courts  of  the  country. 
...  A  treaty,  then,  is  a  law  of  the  land  as  an  act  of  Con- 
gress is,  whenever  its  provisions  prescribe  a  rule  by  which 
the  rights  of  the  private  citizen  or  subject  may  be  deter- 
mined. And  when  such  rights  are  of  a  nature  to  be  enforced 
in  a  court  of  justice,  that  court  resorts  to  the  treaty  for 
a  rule  of  decision  for  the  case  before  it,  as  it  would  to 
a  statute."  ^  For  example,  a  title  to  land  may  be  granted 
to  individuals  by  a  treaty, /^without  any  act  of  Congress  or 
any  patent  from  the  executive  authority  of  the  United 
States. ' '  ^  As  was  declared  by  the  Supreme  Court  in  the 
case  just  cited,  *  ^  The  construction  of  treaties  is  the  peculiar 
province  of  the  judiciary;  and,  except  in  cases  purely  politi- 
cal. Congress  has  no  constitutional  power  to  settle  the 
rights  under  a  treaty,  or  to  affect  titles  already  granted  by 
the  treaty  itself.''^  Speaking  generally,  when  the  court 
takes  a  treaty  as  the  rule  for  its  guidance  and  enforces  it 
without  auxiliary  Congressional  legislation,  it  may  be 
assumed  that  the  treaty  relates  to  matters  not  embraced 
among  the  subjects  upon  which  the  Constitution  specifically 
authorizes  Congress  to  exercise  legislative  power. 

*Edye  v.  Eobertson  (Head  Money  Cases),  112  IT.  S.,  580.  See  also  United 
States  V.  Schooner  Peggy,  1  Cranch,  103,  where  the  court  said:  "Where  a 
treaty  is  the  law  of  the  land,  and  as  such  affects  the  rights  of  parties  litigating 
in  court,  that  treaty  as  much  binds  those  rights,  and  is  as  much  to  be  regarded 
by  the  court,  as  an  act  of  Congress.*' 

'  Jones  V.  Meehan,  175  U.  S.,  1,  at  p.  10. 

'  Ibid.,  at  p.  32.  For  other  cases  in  which  the  Supreme  Court,  without  any 
auxiliary  Congressional  legislation,  enforced  private  rights  of  aliens  derived 
from  treaties,  see  Chirac  v.  Chirac,  2  Wh.,  259,  and  Hauenstein  v.  Lynham,  100 
U.  S.,  483. 


THE  ENFORCEMENT  OF  TREATIES  187 

Under  the  provisions  of  the  Constitution  granting  to 
Congress  the  power  to  establish  inferior  federal  courts  and 
to  regulate  the  appellate  jurisdiction  of  the  Supreme 
Court  ^  it  becomes  necessary  to  provide  for  the  handling 
by  the  federal  courts  of  cases  relating  to  the  construction 
of  treaties.  Except  in  so  far  as  conferred  by  the  Constitu- 
tion, the  federal  courts  have  no  jurisdiction  in  cases  involv- 
ing the  construction  and  enforcement  of  treaties,  at  least 
in  criminal  cases,  until  Congress  by  act  grants  the  requi- 
site authority. 2  The  first  grant  of  this  kind  was  made  by 
the  Judiciary  Act  of  1789,  which,  in  substance,  is  now 
embodied  in  the  Judicial  Code.  Under  it,  the  Supreme 
Court  has  jurisdiction  by  way  of  appeal  or  writ  of  error 
from  the  decisions  of  the  federal  district  courts  and  from 
those  of  the  highest  court  of  any  state,  in  cases  in  which 
the  validity  or  construction  of  a  treaty  of  the  United  States 
is  brought  in  question.^  The  federal  district  courts  are 
given  jurisdiction  in  civil  cases  at  law  or  equity  arising 
under  treaties  made  by  the  United  States  when  the  amount 
in  controversy  exceeds  three  thousand  dollars,  and  also 
in  suits  brought  by  an  alien  for  a  tort  only,  in  violation 
of  a  treaty  of  the  United  States,  without  limitation  as  to 
amount.*  The  Supreme  Court  and  the  federal  district 
courts  are  also  authorized  to  issue  writs  of  habeas  corpus 
for  the  benefit  of  prisoners  held  in  custody  in  violation  of 
a  treaty  of  the  United  States.^  In  addition  to  the  regular 
federal  courts,  Congress  has  sometimes  created  special 
tribunals  for  enforcing  treaty  provisions  in  relation  to 
claims.  An  example  is  the  Spanish  Treaty  Claims  Commis- 
sion, established  for  the  purpose  of  hearing  cases  arising 
under  Article  VII  of  the  treaty  of  peace  with  Spain.^ 

»  Art.  Ill,  sects.  1  and  2. 
'  Cf .  U.  S,  V.  Hudson,  7  Cranch,  32. 

•Judicial  Code  of  the  U.  S.,  sects.  237,  238;  36  Stat,  at  L.,  1156,  1157. 
*  Judicial  Code,  sect.  24,  pars.  1  and  17 ;  36  Stat,  at  L.,  1091,  1093. 
•Revised  Statutes,  sects.  751,  753. 

•31  Stat,  at  L.,  877.     On  the  working  of  the  provision  of  this  act  giving 
the  Supreme  Court  jurisdiction  to  consider  and  decide  cases  certified  to  it  by 


188  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Althougli  there  has  been  some  difference  of  opinion  on 
the  matter,  it  is  fairly  well  settled  that  Congress  could 
also  confer  upon  the  federal  courts  jurisdiction  to  punish 
by  indictment  violations  of  treaty  rights  of  aliens.  This, 
however,  has  never  yet  been  done.^  Under  the  Revised 
Statutes  2  the  federal  courts  already  have  power  to  punish 
as  crimes  attempts  to  injure  ** citizens'*  in  the  enjoyment 
of  rights  derived  from  the  Constitution  or  laws  of  the 
United  States.  By  changing  the  word  ** citizen''  to  *^ per- 
son," it  is  thought  that  the  law  could  be  broadened  so  as 
to  cover  aliens.^  The  Supreme  Court  has  declared :  *  *  That 
the  United  States  have  power  to  provide  for  the  punish- 
ment of  those  who  are  guilty  of  depriving  Chinese  subjects 
of  any  of  the  rights,  privileges,  immunities  or  exemptions 

the  Commission  when  the  latter  body  is  in  doubt,  see  House  rept.  313,  57th 
Cong.,  1st  sess.,  and  Senate  rept.  4329,  59th  Cong.,  1st  sess.  See  also  Frevall 
V.  Bache,  14  Pet.,  95. 

*As  to  crimes  specified  in  treaties,  it  is  necessary  for  Congress  to  pass 
enforcement  legislation  before  the  courts  can  take  cognizance  of  them.  See 
The  Bello  Corrunes,  6  Wheat.,  152. 

'Sect.  5508. 

'See  *' Report  of  Committee  on  the  Protection  by  the  United  States  of  the 
Rights  of  Aliens,''  Proceedings  of  Lake  MohonTc  Conference  on  International 
Arbitration,  19li,  pp.  189-195.  Cf.  on  this  subject  the  recommendations  for 
legislation  made  by  Presidents  Harrison,  McKinley,  Roosevelt,  and  Taft. 
Richardson,  Messages  and  Papers  of  Presidents,  IX,  183,  Supp.  1899-1902,  pjy 
69-70,  128;  For.  Eels,  of  U.  S.,  1906,  pt.  1,  p.  XLIII;  Address  of  President 
Taft  before  the  American  Bar  Assn.,  1914,  Beports,  XXXIX,  362.  A  com- 
mittee of  the  American  Bar  Association  appointed  to  consider  the  question 
reported  that  ** there  are  grave  doubts  as  to  the  constitutionality"  of  the 
proposed  legislation.  Beports  of  the  American  Bar  Assn.,  XV,  416-21  (1892). 
This  report  was  not  adopted  by  the  Association,  and  at  least  one  member  of 
this  committee,  Everett  P.  Wheeler,  subsequently  changed  his  mind.  See  his 
paper  on  **The  Treaty-Making  Power  of  the  Government  of  the  United 
States"  in  Beport  of  the  S4th  Conference  of  the  International  Law  Assn., 
1907,  pp.  148,  157.  For  the  diplomatic  correspondence  relating  to  the  killing 
of  Italians  in  New  Orleans  in  1891,  see  For.  Bels.  of  the  U.  S.,  1891,  pp.  658- 
728,  and  for  a  similar  case  occurring  in  1896,  see  House  Doc.  37,  and  Sen. 
Doc.  104,  both  of  55th  Cong.,  1st  sess.  Probably  the  best  treatment  of  the 
whole  matter  is  found  in  ex-President  Taft's  The  United  States  and  Peace, 
40-89,  where  the  distinguished  author  maintains  that  there  is  no  doubt  of  the 
power  of  Congress  to  pass  the  necessary  legislation  to  punish  the  violators  of 
the  treaty  rights  of  aliens,  granted  to  it  by  Art.  I,  sect.  8,  clause  18,  of  the 
Constitution.  On  the  analogy  of  the  Siebold  and  Debs  cases,  he  also  argues 
that  a  statute  should  be  passed  by  Congress  enabling  the  President  to  act 
directly,  without  reference  to  state  action,  in  protection  of  the  treaty  rights 
of  aliens  whenever  they  are  threatened.  He  adds  that  such  executive  power 
would  doubtless  be  implied  if  federal  court  jurisdiction  were  given,  but  that 
it  would  be  better  to  make  it  express  (p.  86) . 


THE  ENFORCEMENT  OF  TREATIES  189 

guaranteed  to  them  by  the  treaty  [of  1880],  we  do  not 
doubt.  ^'^ 

Under  the  constitutional  and  statutory  provisions  cited, 
the  courts  of  the  United  States  are  competent,  without  any 
special  Congressional  or  executive  action,  to  hear  and 
determine  civil  cases  in  which  aliens  residing  in  this  coun- 
try allege  that  their  treaty  rights  are  violated.  When,  for 
example,  certain  Italian  laborers  were  called  on  in  Iowa 
to  pay  a  road  tax  in  violation,  it  was  alleged,  of  the  treaty 
of  1871  between  Italy  and  the  United  States,  the  Italian 
minister  protested,  and  our  secretary  of  state  replied  that 
**the  question  was  one  primarily  for  the  consideration  of 
the  judicial  tribunals;  that,  under  the  Constitution  of  the 
United  States,  treaties  were  a  part  of  the  supreme  law  and 
were  enforceable  by  the  courts,  and  that  this  principle  was 
especially  applicable  where  complaint  was  made  that  a 
state  law  was  in  conflict  with  the  treaty;  that  the  authori- 
ties of  Iowa  had  taken  the  view  that  such  a  conflict  did  not 
exist,  and  had  administered  the  law  accordingly;  that  in 
such  case  provision  had  been  made  by  law  for  a  review  of 
the  matter  by  the  federal  tribunals,  and  that  it  was  compe- 
tent for  any  Italian  subject  who  felt  aggrieved  by  the  tax 
in  question  *to  apply  to  the  courts  of  the  United  States,  in 
which,  and  not  in  the  executive,  our  Constitution  and  laws 
have  lodged  the  requisite  authority  for  entertaining  his 
suit  for  relief  against  the  action  of  which  he  complains. '  ^ '  ^ 

*  Baldwin  v.  Franks,  120  U.  S.,  678.  A  convincing  argument  in  favor  of 
this  legislation  is  contained  in  the  Report  of  the  Senate  Committee  on  Foreign 
Relations  made  in  1900  on  ** Violations  of  Treaty  Rights  of  Aliens,"  Sen. 
rept.  392,  56th  Cong.,  1st  sess.,  where  it  is  pointed  out  that  such  legislation 
would  not  oust  the  state  courts  from  jurisdiction  in  such  cases,  but  would 
supply  a  concurrent  means  of  trying  such  cases  in  the  federal  courts  accord- 
ing to  State  laws  and  penalties.  "That  Congress  has  the  constitutional 
power  so  to  legislate,"  the  Committee  held,  "is  not  open  to  question"  (p.  4). 
See  also  a  memorandum  on  the  subject  prepared  by  the  Solicitor  of  the 
Department  of  State,  House  rept.  1056,  60th  Cong.,  1st  sess.  (1908),  and 
Proceedings  of  Am.  Soc.  of  Internat.  Law,  II,  21-67,  particularly  the  Pappr 
of  Robert  Lansing,  pp.  44-60,  showing  the  inconsistent  attitude  of  our  govern- 
ment in  asserting  the  responsibility  of  foreign  governments  in  cases  similar 
to  those  in  which  it  disclaims  responsibility  on  its  own  part. 

'  Moore,  Digest  of  International  Law,  V,  238.  A  similar  response  was  made 
in  1890  by  Secretary  Blaine  to  the  Chinese  protest  against  a  residential  segre- 


190  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

THE  COUKTS  AND  POLITICAL  QUESTIONS 

On  the  other  hand,  when  political  questions  are  involved, 
such  as  treaty  provisions  relating  to  boundaries,  the  courts 
defer  to  the  action  of  the  political  departments  of  the  Gov- 
ernment. A  question  relating  to  the  enforcement  or  non- 
enforcement  of  a  treaty  considered  as  an  international 
contract  may  give  rise  to  reclamations  by  one  contracting 
party  upon  the  other.  '*  Whether  the  complaining  nation 
has  just  cause  of  complaint  is  not  matter  for  judicial  cog- 
nizance."^ Thus,  treaties  of  alliance  and  treaties  requir- 
ing legislative  action,  such  as  an  appropriation  of  money 
or  a  declaration  of  war,  are  not  appropriate  for  judicial 
enforcement.  Furthermore,  as  has  been  pointed  out,  *^the 
protection  and  enforcement  of  many  rights  secured  by 
treaties  most  certainly  do  not  belong  to  the  judiciary.  It 
is  only  where  the  rights  of  persons  or  property  are  involved, 
and  when  such  rights  can  be  presented  under  some  judicial 
form  of  proceedings,  that  courts  of  justice  can  interpose 
relief. ' '  ^  The  courts  would  not  interfere,  by  way  of  either 
mandamus  or  injunction,  to  compel  or  restrain  the  payment 
of  money  by  our  Government  under  a  treaty ;  for  this  is  a 
matter  within  the  discretion  of  the  political  departments. 
The  courts  will  usually  take  jurisdiction  in  cases  arising 
under  treaties  when  private  rights  are  involved,  but  in 
arriving  at  decisions  touching  political  questions  they  will 
hold  themselves  bound  by  the  determinations  of  the  politi- 
cal departments  of  the  government.  The  courts  have  no 
I  treaty-making  power,^  and  when  a  question  arises  as  to 
I  whether  a  treaty  of  the  United  States  was  ratified  on  behalf 

gation  ordinance  of  San  Francisco  (ibid.,  239).  Again,  when  a  controversy 
arose  between  the  United  States  and  Japan  over  the  San  Francisco  school 
ordinance  of  1906  which  was  alleged  to  conflict  with  our  treaty  of  1894  with 
that  country  our  Government  promptly  took  appropriate  legal  proceedings  by 
filing  a  bill  of  equity  in  the  federal  court  in  California  to  enforce  th©  treaty. 
E.  Root,  in  Am.  Jour,  of  Intemat.  Law,  I,  274-7. 

^  Whitney  v.  Eobertson,  124  U.  S.,  190. 

'  Thompson,  J.,  in  Cherokee  Nation  v.  Georgia,  5  Pet.,  1,  quoted  with  ap- 
proval by  Nelson,  J.,  in  Georgia  v.  Stanton,  6  Wall.,  50. 

•  The  Amiable  Isabella,  6  Wheat.,  1,  at  p.  71. 


THE  ENFORCEMENT  OP  TREATIES  191 

of  the  foreign  nation  by  the  proper  authority,  or  was  made 
with  a  sovereign  power  capable  of  entering  into  treaty 
relations  with  the  United  States,  the  courts  will  conform 
their  decisions  to  the  determination  of  these  questions  made 
by  the  political  departments  of  the  Government.^  In  the 
Charlton  extradition  case,  the  question  arose  whether  the 
treaty  with  Italy  was  to  be  construed  as  having  lapsed 
through  Its  breach  by  that  country.  But  the  court  held  the 
instrument  to  be  in  full  force,  because  our  own  Executive 
still  recognized  an  obligation  of  the  United  States  under  it 
to  surrender  its  own  citizens.^ 

In  the  case  of  treaty  provisions  enforceable  by  the  courts 
as  primary  law  of  the  land,  without  auxiliary  legislation, 
it  may  happen  that  there  are  already  laws  on  the  statute- 
books  which  are  in  conflict  with  the  provisions  of  the  later 
treaty.  These  may  be  acts  either  of  Congress  or  of  the 
state  legislatures,  which  are  otherwise  valid ;  and  the  ques- 
tion arises  whether  the  treaty  overrides  them.  The  Su- 
preme Court  has  declared  it  to  be  clear  that  *Hhe  treaty 
power  of  the  United  States  extends  to  all  proper  subjects 
of  negotiation  between  our  Government  and  the  govern- 
ments of  other  nations. ' '  ^  If  within  such  limits,  and  not 
in  conflict  with  the  Constitution,*  a  treaty  overrides  any 

*  Doe  V.  Braden,  16  How.,  635. 

'Charlton  v.  Kelly,  229  U.  S.,  447.  Cf.  Terlinden  v.  Ames,  184  U.  S.,  270, 
where  the  court  held  that  the  existence  of  the  treaty  of  June  16,  1852,  between 
the  United  States  and  Prussia,  notwithstanding  the  incorporation  of  Prussia 
into  the  German  Empire,  had  been  repeatedly  recognized  by  the  political  de- 
partment of  the  Grovernment  and  could  not  be  questioned  by  the  judicial 
department,  since  the  matter  was  a  political  one. 

*  De  Geof  roy  v.  Riggs,  133  U.  S.,  267. 

*  No  case  is  known  in  which  a  treaty  of  the  United  States  has  been  declared 
unconstitutional.  John  W.  Foster,  usually  an  accurate  writer,  in  his  Practice 
of  Diplomacy  (pp.  290-1)  implies  that  this  was  done  in  the  case  of  In  re 
Dillon,  7  Sawyer,  56,  7  Fed.  Oas.,  710.  But  an  examination  of  this  case  shows 
that,  although  the  judge  was  at  first  of  the  opinion  that  Article  VI  of  the 
amendments  to  the  Constitution  set  aside  a  provision  of  the  French  consular 
convention  of  1853,  the  final  decision  in  the  case  was  based  on  the  idea  that 
there  was  no  conflict  between  the  Constitution  and  the  treaty.  See  Moore, 
Digest  of  Irbternat.  Law,  V,  78-81,  168;  Crandall,  Treaty-Making  and  Enforce- 
ment, 497. 

The  International  Prize  Court  Convention  signed  at  the  Hague  in  1907 
provided  for  the  carrying  of  appeals  to  such  court  from  the  national  prize 


192  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

and  all  earlier  enactments,  whether  of  Congress  or  of  state 
legislatures.  This  statement  is  true  of  the  acts  of  state  leg- 
islatures, whether  they  are  passed  before  or  after  the  treaty 
is  made;  for  Article  VI  of  the  Constitution,  already  cited, 
requires  judges  in  every  state  to  be  bound  by  all  treaties 
made  under  the  authority  of  the  United  States,  *^  anything 
in  the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding/'^  This  injunction  upon  state  judges  and 
the  rule  that  treaties  are  the  supreme  law  of  the  land  are 
enforced  through  the  appellate  jurisdiction  of  the  Supreme 
Court  over  the  decisions  of  state  courts  interpreting 
treaties.^ 

In  the  case  of  prior  acts  of  Congress  conflicting  with 
treaties,  the  Constitution  is  not  so  explicit.  But  it  appar- 
ently puts  them  on  an  equal  footing.^  Although  the  sub- 
jects upon  which  Congress  may  exercise  its  powers  are,  to 
some  extent  at  least,  enumerated  in  the  Constitution,  while 
those  upon  which  the  treaty-making  power  may  act  are 
unenumerated,  it  is  nevertheless  well  established  that  the 
powers  of  Congress  and  those  of  the  treaty-making  body 
may  overlap  and  operate  upon  the  same  subjects  and  may 

courts  of  the  signatory  parties.  Doubt  arose,  however,  whether  such  an  agree- 
ment could  constitutionally  be  entered  into  by  the  treaty-making  power,  in 
view  of  the  provision  of  our  Constitution  vesting  the  judicial  power  of  the 
United  States  in  the  Supreme  Court  and  inferior  courts  established  by  Con- 
gress. This  difficulty  was  resolved  through  the  device  of  attaching  to  the 
Convention  an  additional  protocol  providing  that,  when  the  national  prize 
courts  have  jurisdiction,  recourse  to  the  international  court  can  only  be  exer- 
cised against  the  United  States  in  the  form  of  a  trial  de  novo,  consisting  of 
an  action  in  damages  for  the  injury  caused  by  the  capture;  and  the  Senate 
ratified  the  convention  on  this  understanding,  Charles,  Treaties,  etc.,  250, 
262-3.  In  order  to  formulate  the  law  to  be  administered  in  the  international 
prize  court,  a  conference  was  held  at  London  which,  in  1909,  issued  a  Dec- 
laration containing  a  codification  of  international  maritime  law.  The  ratifica- 
tion of  this  Convention  was  advised  by  the  Senate  of  the  United  States,  but 
Great  Britain  failed  to  ratify  on  account  of  the  adverse  attitude  of  Parlia- 
ment. IMd.,  266-82.  See  also  President  Taft's  Annual  Message,  1910,  For. 
Eels,  of  U.  S.,  1910,  p.  VIII. 

*  For  fuller  discussion  of  this  much-debated  topic,  see  Butler,  The  Treaty- 
Making  Power  of  the  United  States  (New  York,  1902)  ;  Corwin,  National  Su- 
premacy (New  York,  1913) ;  Willoughby,  Constitutional  Law  of  the  U.  S., 
Chap.  XXXV. 

*  Cf .  Dodge  V.  Woolsey,  18  How.,  355. 
» Whitney  v.  Robertson,  124  U.  S.,  190. 


THE  ENFORCEMENT  OF  TREATIES  193 

be  exerted  for  the  accomplishment  of  the  same  ends.  If 
this  were  not  true,  the  treaty-making  power  would  be  so 
limited  as  very  greatly  to  impair  its  effectiveness.  That 
it  is  subject  to  some  limitations,  however,  there  can  be  no 
doubt.  It  cannot,  for  example,  alter  the  constitutional  dis- 
tribution of  powers,  e.  g,,  transfer  the  power  to  declare  war 
to  the  President.  Any  such  attempt  would  be  a  colorable, 
but  not  a  real,  exercise  of  the  treaty-making  function. 

There  is  abundant  judicial  opinion  to  the  effect  that  a 
treaty  overrides  a  prior  act  of  Congress  in  so  far  as  it  con- 
flicts with  it,  provided  that  the  treaty  is  self -executing.  ^ 
Thus  a  treaty  of  peace  operates  to  repeal  the  act  or  joint 
resolution  of  Congress  declaring  war.^  As  Butler  points 
out,  however,  **it  more  often  happens  that  the  statute  abro- 
gates, and  supersedes,  ^e  treaty,  than  that  the  treaty 
abrogates,  and  supersedes,  the  statute ;  not  because  a  stat- 
ute is  a  higher  order  of  law  than  a  treaty,  but  because  the 
statute  goes  into  effect  without  further  Congressional 
action,  while  the  treaty  may,  and,  in  many  instances,  does, 
require  such  assistance."^ 

EXECUTIVE  ENFORCEMENT 

In  some  cases  it  happens  that  the  duty  of  enforcing  treaty 
provisions  rests  primarily  upon  the  Executive  rather  than 
upon  the  courts.     As  already  indicated,  treaties  may  be 

»See  Taylor  v.  Morton,  2  Curtis  C.  C,  454;  U.  S.  v.  Lee  Yen  Tai,  185  U.  S., 
213;  the  Cherokee  Tobacco,  11  Wall.,  616,  cited  in  Willoughby,  Constitution, 
486-7,  and  cases  cited  in  Crandall,  Treaty-Making  and  Enforcement,  161,  note 
12.  As  to  whether  treaties  modifying  revenue  laws  are  self -executing,  see 
p.  211,  below. 

*  For  another  illustration  see  Moore,  Digest  of  Internat.  Law,  V.  370,  citing 
23  Op.  of  U.  S.  Atty.-Gen.,  545,  where  it  is  said :  *  *  The  provisions  of  the  con- 
vention with  China  proclaimed  December  8,  1894,  were  self -executing,  so  as 
to  modify  or  repeal  a  prior  statute  (of  Congress)  with  which  they  were  in 
conflict. ' ' 

'  Treaty-Making  Power  of  the  U.  8.,  II,  85-6.  If  a  treaty  overrides  a  prior 
inconsistent  act  of  Congress,  it  follows,  a  fortiori,  that  the  treaty  power  may 
constitutionally  operate  upon  the  subjects  in  regard  to  which  Congress  is  given 
by  the  Constitution  fhe  power  of  legislating,  but  in  respect  to  which  the 
power  has  not  been  exercised,  provided  such  matters  are  appropriate  subjects 
of  international  negotiation. 


194  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

considered  not  only  as  declaring  the  law  of  the  land  but 
as  imposing  international  responsibilities  and  duties  upon 
our  Government.  When  a  question  arises  as  to  the  per- 
formance of  such  duties,  it  devolves  primarily  upon  the 
Executive  to  see  that  the  treaty  provisions  are  enforced, 
provided  that  such  provisions  are  operative  without  aux- 
iliary legislation,  and  provided,  farther,  that  neither 
Congress  nor  the  treaty  has  conferred  upon  the  courts  juris- 
diction over  the  question.  To  this  end  the  President  may 
issue  orders  and  instructions  to  the  appropriate  executive 
subordinates,  or  by  virtue  of  his  position  as  /3ommander-in- 
cliief  of  the  army  and  navy  he  may  use  the  armed  forces. 
Thus  has  been  upheld,  under  the  Hague  Convention  of 
1907  concerning  the  internment  by  a  neutral  power  of  bel- 
ligerent troops  found  in  its  territory,^  the  action  of  the 
President  in  ordering  the  arrest  and  internment  of  Mexican 
troops  found  violating  the  territory  of  the  United  States.^ 
Again,  in  the  case  of  the  Rush-Bagot  agreement  of  1817 
limiting  naval  armament  on  the  Great  Lakes,  **the  execu- 
tive orders  of  the  Secretary  of  the  Navy  sufficed  for  full 
compliance  with  its  terms  for  a  year  after  its  adoption. '  *  ^ 
Similarly,  by  executive  order,  military  forces  of  the  United 
States  were  several  times  landed  in  New  Granada 
(Colombia)  in  order  to  carry  out  the  provision  of  the  treaty 
of  1846  with  that  country  whereby  we  undertook  to  guar- 
antee the  *^ perfect  neutrality'*  of  the  Isthmus  of  Panama.* 
It  is  obvious  that  with  such  matters  the  courts  have  nothing 
to  do. 

Again,  prior  to  the  enactment  of  Congressional  extra- 
dition statutes,  cases  sometimes  arose  in  which  the  Presi- 

*  MaUoy,  op.  cit.,  2298. 

2  Ex  parte  Toscano,  208  Fed.  938. 

^  J.  W.  Foster,  secretary  of  state,  in  Eeport  on  Eush-Bagot  Agreement,  De- 
cember, 1892,  Sen.  Ex.  Doc.  9,  52d  Cong.,  2d  sess.,  pp.  11,  14.  There  was  at 
that  time  on  the  statute  books,  however,  an  act  of  Congress  placing  wjithin 
the  discretion  of  the  President  the  extent  of  the  naval  force  to  be  maintained 
upon  the  Great  Lakes.    Ibid.,  p.  15 ;  3  Stat,  at  L.,  217. 

*Malloy,  Treaties,  etc.,  312;  "Use  by  the  U.  S.  of  a  Military  Force  in  the 
Internal  Affairs  of  Colombia,"  Senate  doc.  143,  58th  Cong.,  2d  sess. 


THE  ENFORCEMENT  OF  TREATIES  195 

dent  alone  carried  out  the  provisions  of  extradition  treaties. 
Justice  Gray  said  in  one  of  the  Chinese  Exclusion  cases: 
*'The  surrender,  pursuant  to  treaty  stipulations,  of  persons 
residing  or  found  in  this  country,  and  charged  with  crime 
in  another,  may  be  made  by  the  executive  authority  of  the 
President  alone,  when  no  provision  has  been  made  by  treaty 
or  statute  for  examination  of  the  case  by  a  judge  or  magis- 
trate. Such  was  the  case  of  Jonathan  Bobbins,  under 
article  27  of  the  treaty  with  Great  Britain  of  1794,  in  which 
the  President's  power  in  this  regard  was  demonstrated  in 
the  masterly  and  conclusive  arguments  of  John  Marshall 
in  the  House  of  Representatives.''^  Furthermore,  it  has 
been  held  that  the  provision  of  the  Hague  Convention  of 
1907  concerning  the  rights  and  duties  of  neutrals  in  regard 
to  the  internment  of  belligerent  troops  by  a  neutral  power 
**does  not  require  legislation  to  render  it  effective,  and  is 
therefore  a  part  of  the  law  of  the  land  which  the  President 
has  full  power  to  execute."  ^ 

As  indicated  in  the  next  preceding  chapter,  the  President, 
too,  has  sometimes  carried  out  general  treaty  provisions 
by  entering  into  special  executive  agreements  for  the  settle- 
ment of  pecuniary  claims  against  foreign  governments.  An 
instance  in  which  the  President  carried  into  effect  the 
Hague  Convention  for  the  pacific  settlement  of  interna- 
tional disputes  occurred  in  1903,  when  he  entered  into  a 
special  agreement  for  the  submission  to  the  Hague  court  of 
claims  of  American  citizens  against  Venezuela.  It  is  also 
within  the  power  of  the  President  indirectly  to  execute 

f  treaties  by  carrying  out,  either  finally  or  subject  to  judicial 
review,  the  laws  enacted  by  Congress  for  their  enforce- 

» Fong  Yue  Ting  v.  United  States,  149  U.  S.,  698,  at  p.  714.  See  Fed.  Gas. 
16175  and  case  of  British  Prisoners,  1  Woodbury  and  Minot,  66;  and  cf. 
Butler,  Treaty-Making  Power,  sect.  434.  For  Marshall's  argument,  see  Annals 
of  Congress,  vol.  X,  cols.  596-618  (March  7,  1800).  Ter  contra,  cf.  In  re 
Kaine,  14  How.,  103,  quoted  by  Crandall,  Treaty-Making  Power,  230  note. 

'Crandall,  Treaty-Making,  245,  citing  Ex  parte  Toscano  et  al,  (1913),  208 
Fed.,  938. 


196  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ment,^  or  to  direct  fiis  attorney-general  to  bring  appropri- 
ate proceedings  in  the  federal  courts  for  this  purpose,  e.  g., 
a  bill  in  equity  to  secure  an  injunctive  order  to  protect 
aliens  in  their  treaty  rights.^ 

CONGRESSIONAL  ENFORCEMENT 

This  brings  us  to  a  consideration  of  the  enforcement  of 
treaties  through  Congressional  legislation.  After  enumer- 
ating various  specific  powers  of  Congress,  the  Constitution 
goes  on  to  confer  upon  that  body  power  to  pass  all  neces- 
sary and  proper  laws  for  carrying  into  execution  powers 
vested  by  the  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof  .^  Under  this 
provision  Congress  is  fully  empowered  to  enact  appropriate 
legislation  to  carry  out  treaty  stipulations  * — an  authority 
which  it  frequently  exercises,  since  most  treaties  of  impor- 
tance require  auxiliary  legislation  to  carry  them  into  effect. 
Thus  Congress  may  enact  legislation  empowering  the  Presi- 
dent to  extradite  to  foreign  countries  fugitives  accused  of 
crime,  in  accordance  with  treaty  provisions;  or  it  may  by 

*  Cf .  the  statement  of  Justice  Gray  in  the  case  of  Fong  Yue  Ting,  149  U.  S., 
698,  at  p.  714,  cited  above,  p.  176,  note  1.  It  has  also  been  argued  that,  on 
the  analogy  of  the  Debs  and  Neagle  cases  (135  U.  S.,  1;  158  U.  S.,  564),  the 
President  and  federal  courts  may  take  appropriate  measures,  such  as  the  use 
of  armed  forces  or  of  injunctions,  to  enforce  a  treaty  not  only  by  punishing 
violators  but  by  preventing  its  violation.  See  Corwin,  National  Supremacy, 
293 ;  ibid.,  President 's  Control  of  Foreign  Belations,  105-8. 

Mr.  C.  H.  Burr,  in  his  Treaty-Making  Power  of  the  U.  S.,  says  (p.  392)  : 
"It  is  thus  conclusively  established  that  when  the  Constitution  says  that  the 
President  shall  execute  the  laws,  treaties,  since  they  have  the  force  of  laws, 
come  within  this  constitutional  provision.'^  He  bases  this  conclusion  upon 
the  assumption  that,  in  the  Philadelphia  convention,  the  phrase  '*  enforce 
treaties''  was  stricken  from  among  the  powers  of  the  President  as  being 
superfluous  since  treaties  were  to  be  laws.  In  reality,  however,  the  phrase  was 
stricken  from  among  the  powers  of  Congress,  not  of  the  President.  Documen- 
tary History  of  the  Constitution,  III,  601. 

='See  W.  D.  Lewis,  "Treaty  Powers:  Protection  of  Treaty  Rights  by  the 
Federal  Government,"  Annals  of  the  Am.  Acad,  of  Polit.  and  Soc.  Sci., 
XXXIV,  325-6,  where  it  is  pointed  out  that,  unless  otherwise  expressly  directed 
by  Congress,  the  President  may  use  the  secret  service  placed  at  his  disposal 
to  discover  plots  which,  if  carried  out,  would  violate  rights  guaranteed  by 
treaty. 

» Art.  I,  sect.  8,  cl.  18. 

*Neely  v,  Henkel,  180  U.  S.,  109,  at  p.  121;  Missouri  v.  HoUand,  252  U.  S., 
416;  40  Sup.  Ct.,  382  (1920). 


THE  ENFORCEMENT  OF  TREATIES  197 

law  provide  administrative  agencies  which  the  President 
can  utilize  in  enforcing  treaty  stipulations.^  Again,  as 
already  indicated,  Congress  is  an  important  agency  in  pro- 
viding for  the  enforcement  of  treaties,  through  its  power  of 
regulating  the  jurisdiction  of  the  courts  and  of  passing 
judicial  procedural  laws. 

It  is  now  established  that  the  power  of  Congress  to  enact 
legislation  for  the  enforcement  of  treaties  is  broader  than 
the  ordinary  legislative  power  conferred  by  the  Constitu- 
tion. The  power  of  making  treaties  would  be  an  empty  one 
in  many  cases  unless  Congress  had  the  power  of  enforcing 
them,  even  though  in  the  absence  of  such  treaties  Congress 
would  have  no  such  power.  The  power  of  legislating  for 
the  protection  of  migratory  birds,  prior  to  the  making  of 
a  treaty  on  the  subject,  was  entirely  in  the  hands  of  the 
state  legislatures,  and  Congressional  legislation  attempting 
to  provide  federal  protection  was  unconstitutional.^  But 
after  a  treaty  was  concluded  with  Great  Britain  on  this 
subject  in  1916,  Congress  passed  a  law  (1918)  to  enforce  its 
provisions,  and  the  law  was  held  constitutional  by  the 
federal  district  court  which  had,  prior  to  the  making  of 
the  treaty,  declared  such  legislation  unconstitutional.^ 
Furthermore,  both  the  treaty  and  the  act  of  Congress  were 
subsequently  declared  constitutional  by  the  Supreme 
Court.*  The  President  has  also  issued  proclamations  con- 
taining regulations  adopted  by  the  Secretary  of  Agriculture 
for  the  enforcement  of  this  treaty  act.^ 

As  Attorney-General  Cushing  declared  in  1854,  **A 
treaty,  though  complete  in  itself  and  the  unquestioned  law 

*For  example,  the  act  of  Congress  of  June  6,  1900,  providing  for  the  extra- 
dition of  criminals  from  the  United  States  to  any  foreign  territory  under  the 
control  of  the  United  States  was  appropriate  legislation  by  Congress  in  execu- 
tion of  the  stipulations  of  the  treaty  of  peace  with  Spain.  Neely  v.  Henkel, 
cited  supra. 

»U.  S.  V.  McCullagh,  221  Fed.,  288;  U.  S.  v.  Shauver,  214  Fed.,  154. 

•39  Stat,  at  L.,  1702;  40  Stat,  at  L.,  755;  U.  S.  v.  Thomji^on,  258  Fed.  257; 
U.  S.  V.  Samples,  258  Fed.,  479;  U.  S.  v.  Selkirk,  258  Fed.,  775. 

*  Missouri  v.  Holland,  252  U.  S.,  416;  40  Sup.  Ct.,  382  (1920). 

•See,  e.  g.,  proclamation  No.  1531  of  President  Wilson,  issued  July  28,  1919. 


19a 


19a  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

of  the  land,  may  be  inexecutable  without  the  aid  of  an  act 
of  Congress.  But  it  is  the  constitutional  duty  of  Congress 
to  pass  the  requisite  laws.  But  the  need  of  further  legisla- 
tion, however,  does  not  affect  the  question  of  the  legal  force 
.  of  the  treaty  per  se.''  ^  In  other  words,  it  is  necessary  to 
(  make  a  distinction  between  the  international  and  the  con- 
stitutional or  municipal  aspects  of  treaties,  between  the 
question  of  the  international  validity  of  a  treaty  and  that 
of  its  execution  municipally  through  the  action  of  the  law- 
/making  body.  ^  *  The  treaty-making  power,  if  exercised  with 
'reference  to  a  matter  which  is  properly  the  subject  of  nego- 
tiation with  a  foreign  country,  can  bind  our  Government 
]  fully  in  an  international  sense,  though  the  action  of  other 
departments  of  the  Government  may  still  be  necessary  to 
execute  the  treaty. ' '  ^  On  numerous  occasions  in  our  his- 
tory the  treaty-making  power  has  undertaken  to  bind  the 
United  States  internationally  to  take  or  not  to  take  certain 
action  requiring  for  its  execution  or  observance  the  consent 
or  cooperation  of  other  branches  of  the  Government.  Most 
of  our  important  treaties,  from  Jay's  treaty  of  1794  to  the 
present  time,  have  required  for  their  enforcement  the  ap- 
propriation of  money  by  act  of  Congress.  Again,  the  treaty 
power  may  undertake  to  bind  the  United  States  internation- 
ally to  go  to  war  or  to  take  warlike  action  under  certain 
circumstances.^ 

*6  Op.  U.  S.  Att.-Gen.,  291,  quoted  in  Moore,  Digest  of  Internat  Law,  V, 
370.  For  qualification  of  that  part  of  the  Attorney-General '8  statement  in 
which  he  speaks  of  the  *' Constitutional  duty"  of  Congress  t(j  pass  enforce- 
ment legislation,  see  p.  200,  below. 

'Mathews,  ''The  League  of  Nations  and  the  Constitution,"  Michigan  Loajo 
Eev.,   XVIII,   386    (March,    1920). 

•  Thus  by  the  Webster-A^burton  treaty  of  1842  we  agreed  with  Great  Britain 
to  maintain  a  naval  force  on  the  coast  of  Africa  for  the  suppression  of  the 
slave  trade.  Malloy,  Treaties,  etc.,  655.  In  our  treaty  of  1846  with  New 
Granada  (Colombia),  we  guaranteed  the  "perfect  neutrality"  of  the  Isthmus 
of  Panama  {ibid.,  312)  and  in  the  Clayton-Bulwer  treaty  of  1850  we  entered 
into  a  similar  covenant  with  Great  Britain  respecting  the  isthmian  canal  {ibid., 
661).  Through  our  treaty  of  1904  with  Panama  we  undertook  to  guarantee 
and  maintain  the  independence  of  that  republic  {ibid.,  1349),  and  at  about 
the  same  time  we  extended,  by  implication,  the  same  guarantee  to  Cuba  {ibid., 
364).  ''These  treaty  provisions  do  not  go  as  far  as  to  require  a  declaration 
of  war,  but  they  almost  necessarily  imply  intervention  or  warlike  measures  on 


THE  ENFORCEMENT  OF  TREATIES  199 

On  the  other  hand,  we  have  from  time  to  time  entered 
into  treaties  which  attempt  to  place  a  limit  internationally 
upon  the  exercise  by  Congress  of  powers  granted  to  it  by 
the  Constitution.  Thus  under  the  so-termed  Bryan  peace 
treaties  the  United  States  agreed  with  a  number  of  powers 
not  to  go  to  war  with  the  other  contracting  party  pending 
investigation  of  the  matter  in  controversy  by  an  inter- 
national commission.*  Furthermore,  by  the  Rush-Bagot 
agreement  between  the  United  States  and  Great  Britain  in 
1817  the  two  powers  undertook  mutually  to  limit  the  extent 
of  their  naval  armaments  on  the  Great  Lakes,  thereby  plac- 
ing a  limit,  internationally,  upon  the  power  of  Congress  to 
provide  for  the  construction  of  warships  upon  a  designated 
portion  of  our  coast-line.^ 

When  by  treaty  we  bind  ourselves  to  take  some  action  I 
which,  under  the  Constitution,  can  be  taken  only  by  Con- 
gress, objection  may  be  raised  that  Congress  is  deprived  of 
full  discretion  and  freedom  of  action,  and  its  decisions 
become  purely  perfunctory.  It  is  true  that  Congress  may 
be  placed  under  a  moral  obligation  to  take  or  not  to  take 
certain  action  by  way  of  fulfilment  of  treaty  stipulations, 
and,  as  a  matter  of  practical  politics,  the  obligation  might 
be  so  strong  that  Congress  would  have  no  alternative  but 
to  perform  it,  just  as  it  is  morally  obliged  to  appropriate 
money  to  pay  the  salaries  of  federal  judges.  Speaking 
legally,  however,  there  would  be  no  method  of  compelling 
Congress  to  take  or  not  to  take  the  action  necessary  to 
fulfil  the  obligation  incurred  under  the  treaty.    Since  the 

our  part  in  case  the  independence  or  neutrality  guaranteed  is  threatened  or 
in  imminent  danger.'*  Mathews,  "The  League  of  Nations  and  the  Constitu- 
tion," Mich.  Law  Bev.,  XVIII,  385.  A  somewhat  similar  treaty  project 
negotiated  with  Nicaragua  in  1884  was  pending  in  the  Senate  when  Cleveland 
became  President.  He  withdrew  it,  because,  as  he  stated  in  his  annual  mes- 
sage of  December,  1885,  it  was  "coupled  with  absolute  and  unlimited  engage- 
ments to  defend  the  territorial  integrity  of  the  States  where  such  interests 
lie."  He  held  that  this  clause  was  an  "entangling  alliance,"  inconsistent 
with  the  declared  public  policy  of  the  United  States.  Senate  rept.  1944,  51st 
Cong.,  2d  sess.,  p.  17. 

*  See,  e.  g.,  38  Stat,  at  L.,  1853. 

■  Malloy,  op.  cit,  629. 


200  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Constitution  provides  that  treaties  duly  made  under  the 
authority  of  the  United  States  are  the  supreme  law  of  the 
land,  it  might  at  first  sight  he  thought  that  Congress,  which, 
of  course,  is  hound  by  the  Constitution,  would  *be  legally 
required  to  pass  enforcement  legislation.    But,  as  already 
j  pointed  out,  treaties  are  not  supreme  law  of  the  land  un- 
/  less  self-executing,  and  the  Constitution  places  treaties  and 
\  acts  of  Congress  upon  an  apparently  equal  footing.     If, 
\as  the  courts  have  often  held,  Congress  can  constitutionally 
[annul  a  treaty  by  subsequent  conflicting  legislation  without 
/the  consent  of  the  other  contracting  party,  it  can  hardly  be 
/maintained  that  Congress  is  constitutionally  bound  to  take 
/  affirmative  action  in  passing  legislation  to  enforce  a  treaty. 
If  it  were  the  constitutional  duty  of  Congress  to  pass  en- 
forcement legislation,  then,   a  fortiori,  it  would  be   the 
constitutional  duty  of  Congress  not  to  pass  conflicting  legis- 
lation.^   To  hold  that  Congress  is  so  bound  is  to  confuse  the 
validity  of  a  treaty  with  its  execution  and  to  lose  sight 
of  the  distinction  between  the  international  and  the  munici- 
pal aspects  of  treaties.^    Without  the  consent  of  the  foreign 
power.  Congress,  of  course,  could  not  abrogate  the  inter- 
national   obligation   incurred.     But    there    would    be    no 
constitutional  or  legal  impediment  to  its  annulment  of  the 
treaty,  as  far  as  our  municipal  law  is  concerned.    Speaking 

*  H.  St.  G.  Tucker  denies  that  Congress  is  even  morally  bound  to  declare  war 
when  a  treaty  provision  requires  the  United  States  to  do  so.  "If,"  he  says, 
"the  power  given  to  Congress  to  declare  war  means  anything,  it  means  that 
the  power  must  be  exercised  by  the  free,  independent,  and  untrammelled  judg- 
ment of  the  representatives  of  the  people,  or  it  means  nothing.  To  be  morally 
bound  is  as  effective  as  is  being  legally  bound.  .  .  .  There  is  nothing  in  our 
history  to  give  assurance  that  Congress  would  recognize  the  authority  of  the 
treaty  power  to  bind  Congress  to  declare  war  in  a  cause  that  it  did  not 
approve.  The  decision  as  to  the  policy,  as  to  the  existence  of  the  duty,  and 
as  to  the  power  to  create  the  duty,  would  rest  with  Congress."  Central  Law 
Journal,  LXXXIX,  80-81  (1919).  See  also  Sargent,  "The  Congress  and 
Treaties,"  ibid.,  370-80. 

^In  House  rept.  37,  40th  Cong.,  2d  sess.,  p.  5,  it  is  said  that  if  a  treaty 
"be  not  inconsistent  with  the  spirit  and  purpose  of  the  Government,  Congress 
is  bound  to  give  it  effect,  by  necessary  legislation,  as  a  contract  between  the 
Government  and  a  foreign  nation."  But  it  is  implied  that  this  is  an  inter- 
national, rather  than  a  constitutional,  obligation,  and  also  that  Congress  is  to 
be  the  judge  as  to  whether  the  treaty  contains  the  inconsistency  indicated. 


THE  ENFORCEMENT  OF  TREATIES  201 

of  this  distinction,  ex-President  Taft  declared  that  *Hhe 
suggestion  that,  in  order  to  carry  out  such  an  obligation 
[to  declare  war]  on  the  part  of  the  United  States,  it  would 
be  necessary  to  amend  the  Constitution,  grows  out  of  a 
confusion  of  ideas  and  a  failure  to  analyze  the  differences 
between  the  creation  of  an  obligation  of  the  United  States 
to  do  a  thing  and  the  due,  orderly,  and  constitutional  course 
to'be  taken  by  it  in  doing  that  which  it  has  agreed  to  do/'  ^ 

THE  FUNCTION  OF  THE  HOUSE  OF  REPRESENTATIVES 

The  House  of  Representatives,  by  virtue  of  its  part  in 
law-making,  is  an  important  branch  of  the  treaty-enforcing 
power.  This  does  not  constitute  it  a  part  of  the  treaty- 
making  power.  But  since  there  is  no  legal  means  of  com- 
pelling the  House  to  pass  legislation  necessary  to  enforce 
treaty  stipulations,  it  has  come  to  be  true  as  a  practical 
proposition  that  treaty  provisions  which  are  inexecutable 
without  auxiliary  legislation  must,  in  many  cases,  receive 
the  approval  of  the  House  of  Representatives  before  they 
can  be  carried  into  effect.  The  function  of  the  House  in 
the  enforcement  of  treaties  first  came  under  serious  dis- 
cussion in  connection^with  the  Jay  treaty  of  1794.  Certain 
provisions  of  this  treaty  required  for  their  enforcement 
the  appropriation  of  sundry  sums  of  money.  The  House 
passed  a  resolution  calling  upon  President  Washington  for 
Jay's  instructions,  together  with  other  papers  and  docu- 
ments drawn  up  in  connection  with  the  negotiation.^  The 
granting  of  this  request  would  have  had  the  effect  of  mak- 
ing the  House  a  participant,  at  least  retrospectively,  in  the 
treaty-making  process,  as  well  as  of  enabling  it  to  exercise 
a  more  intelligent  discretion  in  deciding  upon  the  expedi- 
ency of  enforcement  legislation.  Washington  emphatically 
declined  to  comply  with  the  request,  on  the  ground  that 

*  Enforced  Peace,  67. 

*  Annals  of  Congress,  4th  Cong.,  1st  sess.,  759-60;  Hinds,  Precedents,  II, 
982-984. 


202  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  power  of  making  treaties  is  exclusively  vested  in  the 
President  and  Senate,  that  *^the  assent  of  the  House  of 
Eepresentatives  is  not  necessary  to  the  validity  of  a 
treaty, ' '  and  that  treaties,  when  duly  made  by  the  President 
and  the  Senate,  become  '^obligatory''  and  **the  law  of  the 
land/'i 

Washington's  general  position,  as  stated,  was  correct, 
and  to  a  certain  extent  the  House  itself  concurred  in  it 
when,  in  reply  to  his  message,  it  adopted  a  resolution  dis- 
claiming any  agency  in  the  making  of  treaties,^  and  when, 
subsequently,  it  passed  the  necessary  appropriations.  The 
principle  is,  however,  subject  to  the  following  interpreta- 
tions and  modifications.  The  assent  of  the  House  is  not 
necessary  to  the  validity  of  a  treaty,  but  it  may  be  quite 
essential  to  its  execution.  A  treaty  is  ipso  facto  the  law 
of  the  land  if  self -executing.  But  if  auxiliary  legislation 
is  required  for  its  execution,  it  is  not  law  of  the  land  in 
such  a  sense  that  the  courts  will  enforce  it  before  such 
[legislation  is  enacted.  A  treaty  duly  made  is  obligatory, 
in  an  international  sense,  upon  our  government.  But  there 
is  no  legal  means  whereby  Congress  can  be  compelled  to 
perform  the  obligation.  The  precedent  established  in  the 
contest  between  Washington  and  the  House  of  Eepresenta- 
tives indicates  only,  therefore,  (1)  that  the  House  has  no 
share  in  treaty-making,  even  retroactively,  and  (2)  that, 
consequently,  the  President  not  only  does  not  have  to  con- 
sult the  House  prior  to  or  during  the  negotiation  of  a 
treaty  (even  though  the  treaty  calls  for  an  appropriation), 
but  does  not  have  to  transmit  to  that  body  documents  relat- 
ing to  the  negotiation  after  the  treaty  shall  have  been 
approved  by  the  Senate. 

There  was,  however,  an  important  difference  of  opinion 
between  the  President  and  the  House  which  was  not  brought 
to  a  settlement.    Washington  held  that  when  the  faith  of 

*  Eichardson,  Mess,  and  Pap.  of  the  Presidents,  I,  194-6. 
»  Annals  of  Congress,  4th  Cong.,  1st  sess,  771,  782. 


THE  ENFORCEMENT  OF  TREATIES  203 

the  nation  is  pledged  the  House  is  bound  to  pass  the  neces- 
sary appropriations  as  a  mere  ministerial  act,  without  the 
exercise  of  discretion  or  any  consideration  as  to  the  expedi- 
ency or  inexpediency  of  the  treaty  provisions ;  whereas  the 
House,  in  its  resoMion,  asserted  **the  constitutional  right 
and  duty  of  the  House  of  Representatives,  in  all  such  cases, 
to  deliberate  on  the  expediency  or  inexpediency  of  carrying 
such  treaty  into  effect/'  ^  This,  at  all  events,  is  clear,  that 
although  the  House  is  in  control  of  its  own  proceedings  to 
the  extent  that  it  may  deliberate  upon  such  a  question  of 
expediency  if  it  so  desires,  its  deliberations  on  the  matter 
will  not  always  be  carried  on  in  the  light  of  full  informa- 
tion, because  it  cannot  compel  the  President  to  surrender 
papers  and  documents  beyond  the  bare  text  of  the  treaty.^ 
The  result  of  this  mixed  situation  has  been  that,  while  the 
House  still  holds  to  the  existence  of  its  discretionary  power 
in  the  enforcement  of  treaties,  as  a  matter  of  fact  it  has 
seldom,  if  ever,  refused  to  take  the  necessary  action  to 
provide  the  means  of  enforcement.^ 

*  Annals  of  Cong.,  loc  cit.  See  also  Cong.  Globe,  42d  Cong.,  Ist  sess.,  835, 
April  20,  1871. 

"  H.  St.  G.  Tucker,  in  chapter  VIII  of  his  Limitations  on  the  Treaty-Making 
Power,  undertakes  to  refute  the  contention  of  other  eminent  authorities  on  the 
treaty-making  power  that  the  contest  between  President  Washington  and  the 
House  of  Eepresentatives  resulted  in  a  victory  for  the  President  and  that  all 
of  the  Presidents  since  Washington  have  followed  the  position  which  he  took 
in  that  contest.  In  reality  there  is  not  so  much  difference  of  opinion  between 
Mr.  Tucker  and  the  other  authorities  as  might  at  first  sight  appear.  As  we 
have  seen,  Washington  really  took  two  positions  which  are  closely  connected, 
yet  distinguishable;  first,  that  the  House  had  no  share  in  treaty -making  and 
was  not  entitled  to  the  papers,  and  second,  that  the  House  was  bound  to  pass 
the  appropriation.  It  would  appear  that  Mr.  Tucker  is  speaking  of  the  second 
position,  while  the  other  authorities  are  speaking  of  the  first.  Washington 
did  not  maintain  that  a  treaty  could  appropriate  money  of  its  own  force,  nor 
did  he  deny  that  the  action  of  the  House  was  necessary  for  this  purpose,  as 
Mr.  Tucker  seems  to  imply. 

•A  commercial  reciprocity  convention  with  Mexico  in  1883,  however,  pro- 
vided that  it  should  not  go  into  effect  until  supplementary  legislation  had  been 
passed  by  Congress,  but  also  that  such  legislation  should  be  passed  within 
a  year.  Congress  failed  to  act,  although  the  time  was  twice  extended,  and 
the  convention  finally  lapsed.  Malloy,  Treaties,  etc.,  1151;  Moore,  Digest  of 
Internat.  Law,  V,  222.  For  the  reasons  why  Congress  did  not  act,  see  reports 
of  majority  and  minority  of  House  Committee  on  Ways  and  Means  on  the 
Mexican  Treaty  of  January  20,  1883,  House  Keport  No.  2615,  4^th  Cong., 
1st  sess.  See  also  House  rept.  1848,  48th  Cong.,  1st  sess.  (1884).  Although 
not  strictly  in  point,  it  may  also  be  noted  in  this  connection  that  Congress  has 


204  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

On  account  of  the  special  function  of  the  House  of  Rep- 
resentatives in  fiscal  legislation,  the  enforcement  of  treaties 
through  the  enactment  of  measures  raising  or  appropri- 
ating public  funds  stands,  at  least  theoretically,  upon  a 
somewhat  different  footing  from  other  legislative  enforce- 
ment. The  Constitution  provides  that  no  money  shall  be 
drawn  from  the  treasury  except  in  consequence  of  appro- 
priations made  by  law;  and,  although  treaties  are  declared 
'by  that  instrument  to  be  law,  treaty  provisions  requiring 
appropriations  are  not  self-executing,  but  need  an  act  of 
Congress  to  put  them  into  effect.^  But  the  Constitution 
also  requires  that  all  bills  for  raising  revenue  shall  orig- 
inate in  the  House  of  Representatives,  and,  by  custom,  this 
special  privilege  of  the  House  has  been  broadened  to 
include  bills  appropriating  money.  Although  the  Senate 
may,  of  course,  amend  money  bills,  the  fact  that  such 
measures  must  originate  in  the  lower  House  forms  a  plau- 
sible basis  for  the  contention  of  that  body  that  it  has  special 
power  in  connection  with  money  bills  enacted  to  enforce 
treaties.^ 

thus  far  failed  to  Tonfer  upon  the  Federal  Courts  jurisdiction  in  criminal 
cases  in  which  the  treaty  rights  of  aliens  are  alleged  to  be  injured  by  mob 
violence.    See  above,  p.  188. 

*  Turner  v.  Am.  Baptist  Missionary  Union,  5  McLean,  347 ;  Frelinghuysen  v. 
Key,  110  U.  S.,  64;  L'Abra  Silver  Mining  Co.  v.  U.  S.,  175  U.  S.,  423. 

'  It  is  true  that  the  Constitution  merely  says  that  all  '  *  bills ' '  for  this  pur- 
pose shall  originate  in  the  lower  house.  Admittedly,  treaties  are  not  buls; 
so  that  this  provision  is  not  literally  applicable  to  the  question  in  hand. 
Nevertheless,  in  practice,  the  spirit  of  the  provision  has  been  followed  rather 
than  the  letter.  See  Willoughby,  ConstitutioiKil  Law,  I,  488.  The  position  of 
the  House  was  stated  in  a  resolution  which  passed  that  body  in  1880  by  a 
vote  of  175  to  62  as  follows:  *' Resolved,  That  it  is  the  sense  of  this  House  that 
the  negotiation  by  the  Executive  Department  of  the  Government  of  a  com- 
mercial treaty  whereby  the  rates  of  duty  to  be  imposed  on  foreign  commodi- 
ties entering  the  United  States  for  consumption  should  be  fixed  would,  in 
view  of  the  provision  of  section  7  of  article  I  of  the  Constitution  of  the  U.  S. 
be  an  infraction  of  the  Constitution  and  an  invasion  of  one  of  the  highest 
prerogatives  of  the  House  of  Eepresentatives. ' '  Hinds,  Precedents,  II,  989. 
In  1884  the  House  Committee  on  Ways  and  Means  reported  that,  **it  is  true 
that  the  question  has  been  raised  whether  it  would  not  be  competent  for  the 
President  and  Senate  alone  to  enter  into  treaties  which  would  change  the  laws 
for  the  collection  of  revenue,  but  the  practice  has  been  uniform,  and  the 
House  has  always  insisted  that  where  {he  rates  of  duty  are  changed  by  treaty, 
the  approval  of  the  Congress  is  necessary  for  its  execution.^'  House  rept. 
1848,  48th  Cong.,  Ist  sess.,  p.  1.  In  support  of  this  position,  cf.  the  able 
report  of  J.  E.  Tucker,  chairman  of  the  House  Judiciary  Committee,  49th 


THE  ENFORCEMENT  OP  TREATIES  205 

One  of  the  most  notable  occasions  on  which  this  conten- 
tion of  the  House  has  been  asserted  since  the  debate  on  the 
Jay  Treaty  was  the  voting  of  the  appropriation  to  carry  out 
the  treaty  of  1867  with  Russia  for  the  purchase  of  Alaska. 
In  the  bill  carrying  the  necessary  appropriation  of 
$7,200,000  the  House  inserted  an  amendment  which,  after 
reciting  ihat  the  stipulations  of  the  treaty  were  among 
the  subjects  over  which  Congress  had  jurisdiction  and  that 
it  was  necessary  that  the  consent  of  Congress  be  given  to 
such  stipulations  before  they  could  be  carried  into  effect, 
declared  *'That  the  assent  of  Congress  is  hereby  given  to 
the  stipulations  of  said  treaty."^  The  Senate,  however, 
declined  to  concur  in  this  amendment,  and  a  compromise 
was  agreed  upon  of  such  character  that,  as  finally  enacted, 
the  bill  merely  appropriated  the  necessary  sum  to  fulfil  the 
stipulations  of  the  treaty,  since  they  *^  cannot  be  carried 
into  full  force  and  effect  except  by  legislation  to  which  the 
consent  of  both  houses  of  Congress  is  necessary.''^  The 
Senate  thus  formally  conceded  that,  as  far  as  appropria- 
tions, at  all  events,  are  concerned,  treaties  are  not  fully  ^ 
self-executing.  ' 

That  an  international  responsibility  rests  upon  the  Gov- 
ernment to' fulfil  its  treaty  stipulations,  that  a  moral  obliga- 
tion rests  upon  the  legislative  body  to  enact  auxiliary 
legislation  carrying  necessary  appropriations,  and  that 

Congress,  holding  that  a  treaty  cannot  change  revenue  laws  without  the  sanc- 
tion of  the  House.  House  rept.  4177,  49th  Cong.,  2d  sess.  (1887),  reprinted 
as  Chap.  XI  of  H.  St.  G.  Tucker's  Limitations  on  the  Treaty-Making  Power. 
Cf.  House  rept.  2680,  48th  Cong.,  2d  sess.,  "Power  of  President  to  Negotiate 
Treaties  With  Foreign  Governments."  The  House  Committee  on  Foreign  Af- 
fairs submitted  a  report  in  1881,  however,  advising  against  the  adoption  of  a 
resolution  which  declared  that  the  treaty-making  power  "does  not  extend  to 
treaties  which  affect  the  revenue,  or  require  the  appropriation  of  money  to  exe- 
cute them"  on  the  ground  that  the  words  "all  bills  for  raising  revenue"  in 
section  7  of  article  I  of  the  Constitution  do  not  embrace  treaties.  House  rept. 
225,  46th  Cong.,  3d  sess.  Hinds,  Precedents,  II,  989-90.  But  see  Senate  doc, 
206,  57th  Cong.,  2d  sess.,  p.  9. 

*  House  Journal,  40th  Cong.,  2d  sess.,  p.  1064. 

'15  Stat,  at  L.,  198.  See  also  Crandall,  op.  cit.,  176;  Moore,  Digest  of 
Intemat.  Law,  V,  226-229,  quoting  Wharton,  Internat.  Law  Digest,  II,  21-23. 
See  also  majority  and  minority  reports  of  the  House  Committee  on  Foreign 
AfEairs.    House  rept.  37,  40th  Cong.,  2d  sess. 


206  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

failure  at  this  point  constitutes  a  just  cause  of  war,  was 
asserted  not  only,  by  President  Jackson  but  by  the  House 
of  Representatives,  in  1835,  upon  the  failure  of  the  French 
Chamber  of  Deputies  to  appropriate  sums  necessary  to  pay 
the  claims  of  American  citizens  under  the  French  conven- 
tion of  1831.1  The  same  position  was  taken  by  the  execu- 
tive department  of  our  government  when  the  Spanish 
Cortes  failed  to  pass  the  appropriation  necessary  to  pay  a 
claim^the  ^*Mora  Claim'' — ^which,  in  1886,  the  Spanish 
Council  of  Ministers  had  agreed  to  settle.^  In  this  case, 
Congress,  also,  by  joint  resolution,  requested  the  President 
to  insist  upon  payment.^ 

TREATIES  AFFECTING  THE  EEVENUE  LAWS 

j  A  second  phase  of  financial  enforcement  legislation  arises 
in  connection  with  treaties  whose  provisions  purport  to 
affect  the  custom  revenues.  These  revenues  are  in  a  special 
sense  under  the  control  of  Congress,  in  view  of  both  the 
provision  of  the  Constitution  that  **all  bills  for  raising 
revenue  shall  originate  in  the  House  of  Representatives'' 
and  the  gi'ant  to  Congress  in  that  instrument  of  the  power 
to  regulate  commerce  with  foreign  nations.  The  control  of 
Congress  over  the  subject,  however,  is  not  so  exclusive  as 
to  prevent  the  treaty-making  power  from  entering  into  com- 
pacts which  purport  to  affect  the  custom  revenues.  This 
Is,  indeed,  a  usual  and  proper  subject  of  international  nego- 
itiation,  and  many  compacts  upon  it,  especially  relating  to 
/commercial  reciprocity,  have  been  entered  into.  The  ques- 
tion which  here  arises,  however,  is  whether  such  inter- 
national agreements  modify  existing  tariff  laws  of  their 
own  force  or  whether  they  require  Congressional  legisla- 

*Eeports  of  Committees,  No.  133,  23rd  Congress,  2d  sess..  Debates,  23rd 
Cong.,  2d  sess.,  1531-1634;  Crandall,  op.  dt.,  174;  Hinds,  Precedents,  II,  975. 
In  his  message  to  Congress  on  Dec.  1,  1834,  Jackson  recommended  '  *  that  a  law 
be  passed  authorizing  reprisals  upon  French  property  in  case  provision  shall 
not  be  made  for  the  payment  of  the  debt  at  the  approaching  session  of  the 
French  Chambers."     Richardson,  Mess,  and  Pap.  of  the  Presidents,  III,  106. 

*For.  Bels.  of  V.  8.,  1895,  part  II,  pp.  1162  ff.;  J.  B.  Moore  in  Polit.  Set. 
Quar.,  XX,  403-407  (Sept.,  1905). 

•28  Stat,  at  L.,  975;  For.  Bels.,  1894,  app.  I,  364-450. 


THE  ENFORCEMENT  OF  TREATIES  207 

tion  to  carry  them  into  effect.  As  we  have  seen,  the  general 
A  rule  laid  down  by  the  courts  is  that  a  treaty  which  is  duly 
entered  into,  which  does  not  violate  the  Constitution,  and 
which  relates  to  a  proper  subject  of  international  negotia- 
tion, supersedes  prior  conflicting  acts  of  Congress  and  will 
be  so  regarded  by  the  courts,  in  so  far  as  its  provisions 
are  self -executing.  To  this  general  rule,  however,  an  appar- 
ent exception  arises  in  the  case  of  treaty  provisions  which 
conflict  with  prior  acts  of  Congress  fixing  the  rates  of  duty 
upon  goods  imported  into  the  country,  especially  when 
considerable  changes  are  made.  Commercial  reciprocity 
treaties  commonly  provide  for  a  reduction  of  tariff  rates 
in  certain  contingencies.  But  such  rates  are  not,  as  a  rule, 
set  aside  automatically  by  treaty,  for  Congressional  legis- 
lation is  necessary  in  order  to  effect  that  end. 

The  question  as  to*  the  character  of  legislation  appropri- 
ate for  this  purpose  came  up  prominently  in  connection  with 
the  enforcement  of  the  reciprocal  commercial  convention  of 
1815  with  Great  Britain.  The  Senate  inclined  to  the  view 
that  the  treaty  was  self -executing  and  that,  at  most,  an  act 
of  Congress  merely  declaring  the  treaty  in  effect  was  all 
that  was  necessary.  The  House  of  Representatives,  on  the 
other  hand,  while  not  denying  the  validity  of  the  treaty, 
proposed  to  pass  a  measure  reiterating  in  detail  the  pro- 
visions of  the  instrument  relating  to  tariff  rates,  on  the 
theory  that  such  legislation  was  necessary  to  give  these 
provisions  full  force.  Conference  committees  succeeded  in 
arranging  a  compromise  of  such  character  that,  as  finally 
passed,  the  bill  read  as  follows:  **Be  it  enacted  and  de- 
clared that  so  much  of  any  act  as  imposes  a  higher  duty  of 
tonnage,  or  of  impost  on  vessels  and  articles  imported  in 
vessels  of  Great  Britain  than  on  vessels  and  articles 
imported  in  vessels  of  the  United  States,  contrary"  to  the 
convention  of  1815  **be,  from  and  after  the  date  of  the  ratifi- 
.  cation  of  the  said  convention  and  during  the  continuance 


208  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

thereof  deemed  and  taken  to  be  of  no  force  or  effect."^ 
Although  in  this  instance  the  matter  was  settled  by  com- 
promise, the  tendency  has  since  been,  more  and  more,  to 
accept  the  views  of  the  House,  notwithstanding  that  indi- 
vidual opinions  to  the  contrary  have  sometimes  been  ex- 
pressed. In  1844  Kufus  Choate,  in  reporting  adversely  for 
the  Senate  Committee  on  Foreign  Eelations  upon  a  pro- 
posed reciprocity  convention  with  the  German  Zollverein, 
observed  that  the  convention  purported  to  change  duties 
which  had  been  laid  by  law,  and  that  the  Committee  was 
*'not  prepared  to  sanction  so  large  an  innovation  upon 
ancient  and  uniform  practice  in  respect  of  the  department 
of  government  by  which  duties  on  imports  shall  be  imposed. 
.  .  .  In  the  judgment  of  the  Committee  the  legislature  is 
the  department  of  government  by  which  commerce  should 
be  regulated  and  laws  of  revenue  be  passed. ' '  ^ 

An  international  convention  of  1904,  to  which  the  United 
States  was  a  party,  provided  that  hospital  ships  should  be 
exempted,  in  time  of  war,  from  all  port  dues  and  taxes. 
It  was  considered  by  our  Government,  however,  that  the 
agreement  could  not  be  carried  into  effect  in  this  country 
without  Congressional  legislation.  Consequently  the  secre- 
tary of  state  recommended  the  passage  of  a  bill  for  the 
purpose  of  carrying  out  the  treaty,  and  the  House  Com- 
mittee on  Foreign  Affairs,  in  its  report,  declared  such  legis- 
lation to  be  necessary^^ 

The  question  under  discussion  has  come  before  the  courts 
in  connection  with  the  determination  of  the  date  when  the 
tariff  rates  provided  for  by  a  convention  go  into  effect. 

*  3  Stat,  at  L.,  255 ;  see  also  Moore,  Digest  of  Internat.  Law,  V,  223 ;  Cran- 
dall,  op.  cit.,  184-188;  Hinds,  Precedents,  II,  975-979. 

^Senate  doc.  231,  56th  Cong.,  2d  sess.,  VII,  36;  Hinds,  Precedents,  II,  998- 
1001.  Of  the  view  thus  expressed,  John  C.  Calhoun,  while  secretary  of  state, 
declared:  **If  this  be  the  true  view  of  the  treaty-making  power  it  may  be 
truly  said  that  its  exercise  has  been  one  continual  series  of  habitual  and  un- 
interrupted infringements  of  the  Constitution. ' '  Moore,  Digest  of  Internat. 
Law,  V,  164.  Political  hostility  to  President  Tyler  probably  had  some  influ- 
ence upon  the  attitude  of  the  Senate  committee. 

'Malloy,  Treaties,  etc.,  2137;  35  Stat,  at  L.,  pt.  1,  p.  46;  35  Stat,  at  L.,  pt. 
?.,  pp.  1854-62;  House  rept.  533,  60th  Cong.,  Ist  sess.  (1908). 


THE  ENFORCEMENT  OF  TREATIES  209 

Attorney-General  Gushing  ruled  in  1854  that  the  provisions 
of  the  reciprocity  convention  of  1831  with  France  went  into 
effect  on  the  date  of  the  exchange  of  ratifications  as  pro- 
vided in  the  convention,  on  the  theory  that  such  provisions 
were  self-executing  and  therefore  required  no  Congres- 
sional legislation.^  In  view  of  the  doubts  that  have  arisen 
on  the  subject,  however,  it  has  become  customary  to  insert 
clauses  in  such  conventions  stipulating  that  the  instrument 
shall  go  into  effect  only  when  approved  by  Congress,  or 
when  appropriate  enforcement  legislation  has  been  enacted. 
**If  the  treaty-making  power, '*  said  Attorney-General 
Miller,  **in  all  treaties  whose  execution  requires  the  exer- 
cise of  powers  committed  to  Congress,  should  uniformly 
provide  in  the  treaties  for  their  proper  submission  to  Con- 
gress before  they  should  be  effective,  consequences  might 
be  avoided  which  may  jeopardize  the  credit  of  the  nation.'*  ^ 
This  principle  has  been  acted  upon  in  numerous  instances. 
Thus,  in  the  Hawaiian  reciprocity  convention  of  1875  it  is 
provided  that  the  agreement  shall  not  take  effect  *' until  a 
law  to  carry  it  into  operation  shall  have  been  passed  by 
the  Congress  of  the  United  States.''^ 

In  the  case  of  the  Cuban  reciprocity  convention  of  1903, 
no  such  provision  was  at  first  included.  But  the  Senate, 
in  advising  and  consenting  to  ratification,  proposed  and 
secured  the  adoption  of  an  amendment  providing  that  the 
convention  should  not  take  effect  until  it  had  been  approved 
by  Congress ;  *  and  the  Supreme  Court  subsequently  held 

*  6  Op.  Atty.-Gen.,  295. 
>  19  Ibid.,  p.  278. 

'  Malloy,  Treaties,  etc.,  917.  Similar  provisions  were  inserted  in  the  British 
and  Mexican  reciprocity  conventions  of  1854  and  1883  respectively,  and  in  the 
British  treaty  of  1871.  Malloy,  op.  cit.,  672,  713,  1151.  On  the  history  of 
the  Hawaiian  treaty,  see  Sen.  doc.  206,  57th  Cong.,  2d  sess. 

*  Malloy,  Treaties,  etc.,  357;  Sen.  doc.  47,  57th  Cong.,  2d  sess.,  **  Jurisdiction 
of  Senate  to  Act  upon  Keciprocity  Treaties. ''  The  Senate  had  previously 
inserted  in  the  Mexican  reciprocity  convention  of  1883  a  similar  provision, 
but  in  that  case  had  qualified  its  concession  by  providing  also  that  enforcement 
legislation  should  be  enacted  within  twelve  months  from  the  date  of  the 
exchange  of  ratification.  Malloy,  ibid.,  1151;  and  see  Minority  Beport  of 
Ways  and  Means  Committee  of  the  House  regarding  the  enforcement  of  the 
treaty.    House  rept.  2615,  49th  Cong.,  1st  sess.,  pp.  15-16. 


210. THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

that  the  convention  went  into  effect  on  the  date  of  the  pas- 
sage of  the  act  of  Congress  approving  the  convention, 
despite  the  fact  that  the  convention  also  contained  a  pro- 
vision that  it  should  go  into  effect  ten  days  after  the  ex- 
change of  ratifications.^ 

In  this  same  act  of  Congress  a  proviso  was  inserted  to 
the  effect  that  ^'nothing  herein  contained  shall  be  held  or 
construed  as  an  admission  on  the  part  of  the  House  of  Rep- 
resentatives that  customs  duties  can  be  changed  otherwise 
than  by  an  act  of  Congress  originating  in  said  House/' ^ 
The  act  also  provided  that,  while  the  Cuban  convention  was 
in  force,  no  sugar,  the  product  of  any  other  foreign  coun- 
try, should  be  admitted  by  treaty  or  convention  into  the 
United  States  at  a  lower  rate  of  duty  than  that  provided 
by  the  tariff  act  of  1897.^  This  latter  provision  was  ob- 
jected to  by  the  minority  of  the  House  Committee  on  Ways 
and  Means,  on  the  ground  that  **  Congress  has  no  right  to 
attempt  to  bind  the  treaty-making  power  of  the  United 
States  in  a  succeeding  Congress  or  under  a  succeeding 
administration. ' '  *  The  minority  protest,  however,  was 
unavailing,  and  the  provision  may  be  taken  as  fairly  indi- 
cating the  attitude  of  Congress  upon  the  operation  of  the 
treaty-making  power  over  the  subject  of  tariff  duties  on 
foreign  commerce.  A  corresponding  attempt  on  the  part  of 
the  treaty-making  body  to  regulate  custom  duties  and  to 
forbid  Congress  to  alter  such  regulations  would,  as  to  such 
prohibition,  be  clearly  ultra  vires.^ 

*U.  S.  V.  Am.  Sugar  Refining  Co.,  202  U.  S.,  563  (1905). 

»  33  Stat,  at  L.,  pt.  1,  p.  3 

'Ibid.  See  the  debate  on  the  bill  in  the  House  and  especially  in  the  Senate. 
Cong.  Record,  58th  Cong.,  1st  and  2d  sessions.    Hinds,  Precedents,  II,  996-8. 

*  House  rept.  1,  pt.  2,  58th  Cong.,  1st  sess.,  p.  2. 

"  Cf.  Fuller,  C.  J.,  in  Downes  v.  Bidwell,  182  U.  S.,  370.  In  this  case  four 
justices  held  that  the  treaty  power  alone  cannot  incorporate  ceded  territory 
into  the  United  States.  This  position  is  criticized  by  Willoughby  on  the  ground 
that  it  is  inconsistent  with  the  principle  that  the  treaty  power  and  the  law- 
making power  are  coordinate  in  authority.  Constitutional  Law  of  U.  S.,  I, 
430.  It  is  to  be  observed,  however,  that  these  two  powers  are  not,  in  every 
case,  entirely  equal  and  coordinate,  since  a  treaty  may  sometimes  require 
ancillary  legislation  in  order  to  put  it  into  effect,  because  it  is  not  self- 
executing.    See  cases  cited  in  note  1,  p.  193,  supra. 


THE  ENFORCEMENT  OP  TREATIES  211 

The  general  control  which  Congress  has  assumed  to  exer- 
cise over  the  matter  of  custom  revenues  is  also  shown  by 
the  incorporation  in  various  tariff  acts,  e.g.,  the  act  of 
1897,  of  provisions  which  purport  to  grant  authority  to  the, 
treaty-making   body    to    enter    into    custom    agreements.^ 
From  the  strictly  legal  point  of  view,  no  such  grant  is  j 
necessary;   for  the   treaty-making  body  is  competent  to 
conclude  agreements  affecting  the  custom  revenues  which 
are  valid  internationally,^  although  not  necessarily  self- 
executing.    But  from  the  practical  point  of  view,  it  is  con- 
ceded by  the  political  departments  of  the  government  that, 
in  practice,  the  House  of  Representatives  should  be  con- 
sulted and  that  Congress  should  have  some  influence,  albeit [ 
indirect,  in  making,  as  well  as  in  enforcing,  agreements 
relating  to  the  custom  revenues. 

It  thus  appears  that  in  the  case  of  treaties  relating  to 
certain  matters  which,  under  the  Constitution,  are  delegated 
to  the  legislative  control  of  Congress,  the  treaty-making 
power  has  conceded  that  a  treaty  should  not  be  put  into 
effect  until  it  has  been  approved  by  Congress.  This  has 
been  agreed  to  particularly  in  relation  to  the  regulation  of 
customs  revenue,  probably  for  the  reason  that  the  exercise 
of  this  power  is  a  bone  of  contention  between  political 
parties.  The  need  of  party  cohesion  on  tariff  policy  has 
doubtless  influenced  the  treaty-making  power  in  its  conces- 
sion to  Congress.^  This,  however,  has  not  been  the  sole 
influence  in  this  direction.  Indeed,  the  tendency  can  be  dis- 
covered in  relation  to  treaties  dealing  with  matters  of  no 
financial  or  political  significance.^ 

*  Cf .  Whitney  v.  Robertson,  124  U.  S.,  190. 

'A  practical  consideration  operating  in  this  direction  was  thus  indicated 
by  President  Cleveland:  ''As  a  further  objection,  it  is  evident  that  tariff  regu- 
lation by  treaty  diminishes  that  independent  control  over  its  own  revenues 
which  is  essential  for  the  safety  and  welfare  of  any  government.  Emergency 
calling  for  an  increase  of  taxation  may  at  any  time  arise,  and  no  engagement 
with  a  foreign  power  should  exist  to  hamper  the  action  of  the  government." 
Annual  Message,  Dec.  8,  1885.  For.  Eels.,  1885,  XVI,  quoted  by  Moore,  Digest 
of  Intemat.  Law,  V,  272. 

'Cf.  the  provision  of  the  Migratory  Bird  Convention  of  1916  between  the 
United  States  and  Great  Britain:  *'The  high  contracting  powers  agree  them- 


212  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

'  In  order  to  avoid  misunderstandings  with  foreign  nations 
and  accusations  of  bad  faith  by  such  nations,  one  of  two 
practical  expedients  should  be  resorted  to  in  all  cases  in 
which  Congressional  legislation  is  necessary  to  put  a  treaty 
into  effect:  (1)  the  treaty  should  contain  an  express  pro- 
vision that  it  is  to  go  into  operation  only  when  Congress 
shall  have  indicated  its  approval  by  passing  enforcement 
legislation;  (2)  the  exchange  of  ratifications  should  be 
withheld  by  the  President  until  such  legislation  has  been 
enacted.  In  order  that  the  treaty  power  as  a  whole  shall  be 
fully  effective,  it  is  desirable,  if  not  essential,  that  there  be 
good  working  relations  on  these  lines  between  (a)  the 
^President  and  Senate,  i.e.,  the  treaty-making  power  and 
(b)  Congress,  i.e.,  the  treaty-enforcing  authority. 

REFERENCES 

Burr,  C.  H.,  Treat^Making  Power  of  the  United  States  (Philadelphia, 

1912),  Chap.  V,  pp.  376  ff. 
Butler,  C.  H.,  Treaty-Making  Power  (New  York,  1902),  I,  Chap.  X;  II, 

Chap.  XII. 
Corwin,  E.  S.,  National  Supremacy  (New  York,  1913),  Chap.  X. 
Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 

1917),  92-109. 
Crandall,  S.  B.,  Treaty-Making  and  Enforcement  (2nd  edition,  Washing- 
ton, 1916),  Chaps.  XI,  XII,  XIII,  XIV,  XV,  XVI,  XVII. 
Foster,  J.  W.,  The  Practice  of  Diplomacy  (Boston,  1906),  Chap.  XIV. 
Moore,  J.  B.,  Digest  of  International  Law  ("Washington,  1906),  V,  221-248. 
Sutherland,   G.,    Constitutional   Power   and   World   Affairs    (New   York, 

1919),  137-140;  150-165. 
Tucker,  H.   St.   G.,  Limitations   on  the  Treaty-Making  Power   (Boston, 

1915). 
Willoughby,  W.  W.,  Constitutional  Lam  of  the  United  States  (New  York, 

1910),  I,  Chap.  XXXIV. 

selves  to  take,  or  to  propose  to  their  respective  appropriate  law-making  bodies, 
the  necessary  measures  for  insuring  the  execution  of  the  present  convention," 
39  Stat,  at  L.,  1704. 


CHAPTER  XII 

THE  INTERPRETATION  OF  TREATIES 

CLOSELY  connected  with  the  enforcement  of  treaties  is 
their  interpretation,  for  the  authorities  that  enforcew 
are  usually  required  also  to  interpret — often,  in  fact,  tol 
interpret  in  the  very  act  of  enforcement.^    On  account  of* 
the  limitations  of  human  language,  as  well  as  because  of 
the  impossibility  of  foreseeing  all  the  circumstances  and 
sets  of  facts  that  may  arise  to  affect  a  treaty's  application, 
it  frequently  happens  that  doubts  may  justifiably  be  enter- 
tained as  to  the  meaning  and  proper  interpretation  of  bind- 
ing international  agreements. 

INTERPKETATION  BY  THE  POLITICAL.  DEPARTMENTS 

In  the  United  States  interpretations  are  constantly  being 
placed  upon  treaties  by  Congress,  by  the  Executive,  and  by 
the  courts.  In  passing  legislation  for  the  enforcement  of 
treaty  stipulations.  Congress  must  necessarily  proceed  inf 
accordance  with  its  views  of  the  meaning  of  these  stipula- 
tions, and  it  will  often  incorporate  these  views  in  the  legis- 
lation which  it  enacts.  Thus  in  passing  the  Panama  Canal 
Act  of  1912  providing  for  the  exemption  of  American  ves- 
sels engaged  in  the  coastwise  trade  from  the  payment  of 
tolls  on  going  through  the  Canal,^  Congress  gave  evidence 
of  its  view  that  such  an  exemption  was  in  accordance  with 
the  provisions  of  the  Hay-Pauncef ote  Treaty.  Of  course,  as 
hitherto  pointed  out,  Congress  can  constitutionally  enact 

***  Interpretation "  of  treaties  is  sometimes  distinguished  from  **  construc- 
tion" of  treaties,  but  for  our  purposes  the  two  terms  may  be  considered 
synonymous. 

» 37  Stat,  at  L.,  pt.  I,  p.  560. 

213 


214  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

legislation  which  abrogates  and  supersedes  prior  treaties  of 
binding  international  force.  But  such  conflict  between 
treaties  and  acts  of  Congress  is  not  to  be  presumed  so  long 
as  the  apparently  conflicting  provisions  can  possibly  be 
reconciled.  Until  the  contrary  conclusively  appears,  the 
presumption  is  that  Congress  will  guide  its  action  in  strict 
accordance  with  treaty  obligations. 

The  executive  department  of  the  government,  likewise,  is 
frequently  called  upon  to  place  an  interpretation  upon  a 
treaty.  Thus  in  1912  our  Navy  Department,  being  desirous 
of  securing  the  sole  right  of  erecting  and  operating  wireless 
telegraph  stations  in  the  Canal  Zone  and  on  the  Isthmus 
of  Panama,  suggested  to  the  State  Department  that  nego- 
tiations be  entered  into  with  the  government  of  Panama 
looking  to  the  necessary  concessions  for  this  purpose.  The 
State  Department,  however,  in  accordance  with  the  opinion 
of  its  solicitor,  decided  that  such  negotiations  were  unneces- 
sary, inasmuch  as,  under  the  Hay-Bunau-Varilla  treaty  of 
1903  with  Panama,  our  government  already  enjoyed  full 
and  exclusive  right  and  authority  to  erect  and  operate  wire- 
less telegraph  stations,  not  only  in  the  canal  zone,  but  on 
the  Isthmus  of  Panama.^  Again,  the  same  treaty  was  inter- 
preted in  1907  by  the  Secretary  of  War  as  conferring  upon 
the  United  States  jurisdiction  over  the  waters  of  Manzar 
nillo  Bay  below  the  mean  low- water  mark;  and  in  accord- 
ance with  such  interpretation  the  President  granted  a 
permit  to  a  certain  company  to  lay  a  cable  in  these  waters.^ 

The  Rush-Bagot  agreement  of  1817  limited  the  naval 
force  to  be  maintained  by  the  United  States  on  the  Great 
Lakes  to  three  vessels  of  a  burden  not  exceeding  one  hun- 
dred tons  each.  This  restriction  was  interpreted  by  our 
Oovemment,  however,  as  not  applying  to  the  revenue  serv- 
ice, and  in  1892  we  had  on  Lake  Michigan  in  that  service  an 

*  See  the  opinion  of  the  Solicitor,  For.  Eels,  of  the  TJ.  S.,  1912. 
*For.  Eels,  of  U.  S.,  1908,  p.  679. 


THE  INTERPRETATION  OF  TREATIES  215 

armed  vessel  of  nearly  five  hundred  tons.^  An  executive 
interpretation  of  a  treaty  which  profoundly  influenced  our 
national  history  at  an  early  period  was  that  made  by  Presi- 
dent Washington  when  he  issued  his  neutrality  proclama- 
tion of  1793,  thereby  construing  our  treaty  of  alliance  of 
1778  with  France  as  not  requiring  us  to  assist  that  nation  in 
the  war  in  which  she  was  now  engaged. 

Many  of  the  communications  which  pass  between  our 
State  Department  and  the  corresponding  department  or 
diplomatic  representatives  of  other  governments  with  which 
we  have  treaty  relations  have  to  do  with  the  interpretation 
of  treaties,  either  indicating  the  construction  placed  upon 
them  by  our  Government  or  combating  that  placed  upon 
them  by  the  foreign  government,  or  both.^  In  many  in- 
stances the  State  Department  puts  its  own  interpretation  on 
treaties  whose  meaning  is  disputed.  But  it  sometimes 
adopts  as  its  interpretation  that  indicated  by  other  organs 
of  the  Government,  such  as  the  Supreme  Court,  the  At- 
torney-General, or  the  Secretary  of  War.^ 

The  published  volumes  of  the  Foreign  Relations  of  the 
United  States  are  full  of  diplomatic  exchanges  revolving 
around  the  disputed  interpretation  of  treaties.  A  secretary 
of  state,  in  carrying  on  a  diplomatic  discussion  over  the 
disputed  interpretation  of  a  treaty,  is  usually  loath  to  con- 
cede that  the  counter-arguments  of  the  foreign  government 
are  well-grounded,  even  when  he  realizes  such  to  be  the 
case,  lest  he  be  accused  of  weakness  in  maintaining  our 
national  rights.  Occasionally,  however,  under  circum- 
stances of  this  sort,  our  secretary  of  state  has  had  the  grace 

*  Senate  Ex,  Doc.  9,  52d  Cong.,  2d  sess.,  p.  31;  Moore's  Digest  of  Internat. 
Law,  I,  696;  Bigelow,  Breaches  of  Anglo-American  Treaties,  34. 

^See  For.  Rels.  of  U.  S.,  passim,  e.g.,  1873,  p.  720;  1883,  p.  418;  1899,  p. 
746;  1900,  p.  914;  1910,  pp.  658,  664,  852;  1911,  p.  673;  1912,  p.  1221. 

'For.  Bels.  of  U.  S.,  1910,  p.  666;  ibid.,  1908,  pp.  595,  679.  In  1888  Secre- 
tary Bayard  declined  to  furnish  the  Swiss  minister  with  our  government's 
interpretation  of  the  trade  mark  convention,  on  the  ground  that  the  Supreme 
Court  had  left  untouched  "the  whole  question  of  the  treaty-making  power  of 
the  General  Government  over  trade-marks  and  the  duty  of  Congress  to  pass 
any  laws  necessary  to  carry  such  treaties  into  effect."  For.  Bels.  of  U.  S.. 
1888,  part  II,  p.  1541. 


216  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

to  admit  the  justness  of  the  contention  of  the  foreign 
government.  Thus  in  1898  the  government  of  Switzerland, 
by  virtue  of  the  most-favored-nation  clause  of  our  treaty  of 
1850  with  that  state,  claimed  privileges  for  Swiss  imports 
into  the  United  States  such  as  we  had  recently  granted  to 
imports  from  France  under  the  terms  of  a  reciprocity  con- 
vention. Secretary  Day  denied  the  justice  of  the  claim  on 
the  ground  that  a  reciprocity  treaty  is  a  bargain  and  not  a 
favor,  and  that  the  United  States  *'has  consistently  main- 
tained the  view  that  the  most-favored-nation  clause  does  not 
entitle  a  third  government  to  demand  the  benefits  of  a 
special  agreement  of  reciprocity.'^^  Shortly  afterwards, 
however,  Mr.  Day's  successor,  Mr.  Hay,  while  agreeing 
with  his  predecessor  that  the  construction  which  for  almost 
a  century  had  been  uniformly  given  by  our  Government  to 
most-favored-nation  clauses  was  that,  in  the  language  of 
John  Quincy  Adams,  they  **only  covered  gratuitous  favors, 
and  did  not  touch  concessions  for  equivalents,''  neverthe- 
less admitted  that  when  the  Swiss  treaty  of  1850  was  signed 
it  was  the  understanding  on  both  sides  that  the  United 
States  was  making  an  exception  to  its  otherwise  uniform 
policy  in  this  respect.^  We  therefore  acceded  to  the  Swiss 
claim;  although,  in  view  of  the  Swiss  construction  of  the 
most-favored-nation  clauses  of  the  treaty,  we  shortly  after- 
wards exercised  the  option  albwed  by  the  treaty  itself  of 
giving  notice  of  our  intention  to  discontinue  the  operation 
of  those  clauses. 

If  the  executive  interpretation  of  a  treaty  may  vary  from 
one  secretary  of  state  to  another  in  the  same  administration, 
it  follows,  a  fortiori  J  that  such  interpretation  may  vary  from 

^For.  Bels.  of  U.  S.,  1899,  p.  741.  This  interpretation  of  the  most-favored- 
nation  clause  has  been  sanctioned,  not  only  by  the  executive  department,  but 
also  by  the  courts.  Thus  the  Supreme  Court  has  held  that  such  a  clause  in 
our  treaty  of  1858  with  Denmark  does  not  require  us  to  extend  to  that  country 
without  compensation  privileges  which  we  conceded,  in  exchange  for  valuable 
concessions,  to  the  Hawaiian  Islands  by  the  treaty  of  1875.  Bartram  v.  Robert- 
son, 122  U.  S.,  116. 

'Ibid.,  746-8. 


THE  INTERPRETATION  OF  TREATIES  217 

one  administration  to  another.  Thus  in  the  case  of  the  act 
of  Congress  of  1912  exempting  our  coastwise  vessels  from 
the  payment  of  tolls  on  going  through  the  Panama  Canal, 
Secretary  Knox,  in  notes  to  the  British  Government,  argued 
that  this  provision  was  not  a  violation  of  the  Hay-Paunce- 
fote  Treaty,  and  President  Taft  took  the  same  position. 
**  After  full  examination  of  the  Hay-Pauncefote  treaty,  *' 
said  the  President,  **I  feel  confident  that  the  exemption  of 
the  coastwise  vessels  of  the  United  States  from  tolls  and 
the  imposition  of  tolls  on  vessels  of  all  nations  engaged  in 
the  foreign  trade  is  not  a  violation  of  the  treaty. '  '^  Within 
two  years,  however.  President  Wilson  declared  in  an  ad- 
dress to  Congress  that  the  exemption  of  our  coastwise 
vessels  **is  in  plain  contravention  of  the  [Hay-Pauncefote] 
treaty.''  We  should  not,  he  added,  interpret  '*with  a  too 
strained  or  refined  reading  the  words  of  our  own  promises 
just  because  we  have  power  enpugh  to  give  us  leave  to  read 
them  as  we  please.  .  .  .  We  ought  to  reverse  our  action 
without  raising  the  question  whether  we  were  right  or 
wrong. ''2  At  Wilson's  solicitation,  Congress  passed  an  act 
which  repealed  the  measure  of  1912  in  so  far  as  it  granted 
exemption  to  our  vessels.^ 

The  variation  in  the  interpretations  thus  placed  upon  the  pj 
treaty  is  to  be  ascribed  mainly  to  the  fact  that  such  inter- 1/ 
pretations  were  made  by  the  political  departments  of  they 
Government.     Had  the  treaty  provisions  in  this  instance 
been  subjected  to  judicial  interpretation,  such  variation 
would  have  been  highly  improbable,  on  account  of  the 
greater  permanency  of  the  judiciary  and  the  operation  of 
the  rule  of  s'tare  decisis, 

*  House  doc.  914,  62d  Cong.,  2d  sess.,  p.  1  (August  19,  1912),  and  cf.  Sen. 
doc.  11,  63rd  Cong.,  1st  sess. 

'House  doc.  813,  63rd  Cong.,  2d  sess.  (March  5,  1914). 

'  38  Stat,  at  L.,  pt.  1,  p.  386.  In  repealing  this  provision,  however,  Congress 
specified  that  its  action  should  "not  be  construed  or  held  as  a  waiver  or  relin- 
quishment of  any  right  the  United  States  may  have  under  the  treaty  ...  to 
discriminate  in  favor  of  its  vessels"  in  the  matter  of  tolls. 


218  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 


JUDICIAL   INTERPRETATION 

The  Constitution  provides  that  the  judicial  power  vested 
in  the  courts  of  the  United  States  shall  extend  to  all  cases 
in  law  and  equity  arising  under  treaties  made  under  United 
States  authority;^  and,  as  already  pointed  out,  in  cases 
involving  the  construction  of  a  treaty  the  Supreme  Court 
has  jurisdiction  by  way  of  appeal  or  writ  of  error  from  the 
decisions  of  the  federal  district  courts  and  from  those  of 
the  highest  court  of  any  state.^  In  exercising  such  power, 
it  may  easily  become  necessary  for  the  courts  to  say  what 
given  treaties  mean.  It  is  not  always  feasible,  however,  to 
bring  before  the  courts  for  adjudication  the  provisions  of 
treaties  about  whose  interpretation  there  is  doubt.  Thus 
the  question  whether  a  correct  interpretation  of  the  treaty 
of  alliance  with  France  permitted  us  to  remain  neutral  in 
1793  was  not  one  upon  which  the  courts  are  competent  to 
pass,  since  it  is  a  political  question  and  involves  a  matter 
iof  public  political  policy.  Many  treaties  are  of  a  strictly 
jpublic  character,  pledging  the  contracting  powers  to  take 
certain  action  in  their  governmental  capacity  upon  the  aris- 
ing of  a  given  contingency;  and  the  question  whether  a 
particular  circumstance  is  such  a  contingency  as  to  require 
the  action  contemplated  by  the  treaty  is  political  in  its 
nature,  and  the  courts  will  not  undertake  to  decide  it.  When 
a  treaty  stipulates  action  on  the  part  of  one  of  the  contract- 
ing parties  in  its  governmental  capacity,  and  an  allegation 
^.of  non-performance  of  the  stipulation  gives  rise  to  a  dispute 
Ibetween  the  parties  as  to  the  correct  interpretation  of  the 
peaty,  this  again  is  a  political  question  not  suitable  for 
/submission  to  the  national  courts  of  either  party.  If  the 
question  is  not  capable  of  settlement  by  diplomatic  negotia- 
tions, it  may  be  left  to  arbitration  or  may  be  regarded  as 

*  Art.  Ill,  sect.  2. 

*  Judicial  Code  of  U.  S.,  sects.  237-8. 


THE  INTERPRETATION  OF  TREATIES  219 

a  casits  belli}  Thus,  as  the  Supreme  Court  has  declared, 
**when  the  terms  of  the  [treaty]  stipulation  import  a  con- 
tract— ^when  either  of  the  parties  engages  to  perform  a 
particular  act — the  treaty  addresses  itself  to  the  political, 
not  the  judicial  department;  and  the  legislature  must  exe- 
cute the  contract  before  it  can  become  a  rule  for  the  court. ''^ 

On  public  rights,  the  courts  follow  the  political  depart- 
ments of  the  Government,  both  as  to  the  interpretation  of  a 
treaty  and  as  to  whether  an  alleged  treaty  is  actually  in 
force.  Thus,  as  already  indicated,  they  defer  to  the  judg- 
ment of  the  executive  department  of  the  Government  as  to 
whether  a  treaty,  despite  its  breach  by  the  other  party,  is 
still  in  force.^  Furthermore,  if  Congress  disregards  a 
treaty  by  passing  a  law  in  conflict  with  it,  the  courts  are 
bound  to  consider  the  treaty  as  no  longer  law  of  the  land.* 

When,  on  the  other  hand,  treaties  confer  private  rights 
on  citizens  or  subjects  of  the  contracting  powers — rightsj 
such  as  are  enforceable  in  a  court  of  justice — the  courts] 
accept  such  treaties  as  rules  of  decision  and  place  upon  them) 
their  own  interpretation,  in  so  far  as  the  treaties  are  self-/ 
executing,  i.e.,  in  the  degree  in  which  they  presently  estab-\ 
lish  such  rights  rather  than  merely  promise  them.  Thus  in 
1890  the  question  arose  whether  a  French  citizen  is  entitled 
to  own,  by  inheritance  from  an  American  citizen,  property 
situated  in  the  District  of  Columbia.  The  treaty  of  1853 
with  France  granted  this  right  only  with  reference  to  prop- 
erty situated  in  **all  the  states  of  the  Union.  *'  ^    After  lay- 

*  Cf .  the  case  of  our  dispute  with  Great  Britain  over  the  seal  fisheries  in  the 
Behring  Sea,  and  see  In  re  Cooper,  143  U.  S.,  472,  and  Baldwin,  American 
Judiciary,  37-41. 

"Foster  v.  Neilson,  2  Pet.,  314.  It  results  from  the  above  reasoning  that 
there  is  no  conflict  between  treaties  agreeing  to  international  arbitration  of 
disputes  arising  from  the  interpretation  of  treaties  and  Art.  ^11,  Sect  1,  of 
the  Constitution  providing  that  the  judicial  power  vested  in  the  courts  of 
the  United  States  shall  extend  to  all  cases  in  law  and  equity  arising  under 
treaties  made  under  the  nation's  authority. 

•  Charlton  v.  Kelly,  229  U.  S.,  447. 

*Botiller  v.  Dominguez,  130  U.  S.,  238;  The  Cherokee  Tobacco,  1  Wall.,  616; 
Head  Money  Cases,  112  U.  S.,  580;  Whitney  v.  Bobertson,  124  U.  S.,  190. 
» Malloy,  Treaties,  etc.,  531. 


220  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ing  down  the  rule  that  ^4t  is  a  general  principle  of  construc- 
tion with  respect  to  treaties  that  they  should  be  liberally 
construed,  so  as  to  carry  out  the  apparent  intention  of  the 
parties  to  secure  equality  and  reciprocity  between  them,'* 
the  Supreme  Court  proceeded  to  construe  the  clause  in  ques- 
tion to  be  broad  enough  to  include  the  District  of  Columbia.^ 
/  In  cases  in  which  private  rights  are  involved  a  prior 
I5xecutive  interpretation  of  a  treaty  would  not  be  considered 
/necessarily  binding  upon  the  courts;^  nor,  in  such  cases, 
/  would  the  courts  decline  to  give  effect  to  treaty  provisions 
/  establishing  private  rights,  even  though  the  judicial  con- 
(    structions  were  resisted  by  the  political  department  of  the 
\government  in  argument  before  the  court.^    On  the  other 
hand,  when  private  rights  have  been  determined  by  the 
Supreme  Court  through  the  interpretation  of  a  treaty,  the 
executive  department  of  the  Government  considers  such  in- 
terpretation conclusive  as  to  the  treaty's  meaning.* 

TREATY    SPECIFICATION    OF    METHOD    OF    INTERPRETATION 

/  Treaties  sometimes  contain  provisions  indicating  the 
/meaning  or  interpretation  of  any  of  their  terms  which  would 
otherwise  be  doubtful  or  ambiguous.  Such  interpretative 
provisions  are  sometimes  inserted  by  the  Senate  with  a  view 
to  indicating  the  understanding  of  that  body  as  to  the  mean- 
ing to  be  attached  to  the  terms  of  a  treaty  for  whose  ratifica- 
tion its  advice  and  consent  is  asked.  If  such  Senate  ^  *  y^ser- 
vations''  are  accepted  by  the  President  and  by  the  other 
contracting  party,  they  become  as  valid  and  binding  as  any 

*De  Geofroy  v.  Kiggs,  133  U.  S.,  258,  at  p.  271.  The  court  found  support 
for  this  construction  in  an  act  of  Congress.  Cf.  Tucker  v.  Alexandroff,  183 
U.  S.,  424,  where  the  court  declared  that  "a  convention  in  a  treaty  which  is 
operative  upon  both  signatory  powers  and  is  intended  for  their  mutual  protec- 
tion, should  be  interpreted  in  a  spirit  of  uberrima  fides,  and  in  a  manner  to 
carry  out  its  manifest  purpose. ' ' 

« For.  Bels.  of  V.  S.,  1910,  p.  732. 

'  The  La  Ninfa,  75  Fed.,  513 ;  Baldwin,  American  Judiciary,  40. 

*  See  Maiorano  v.  B.  &  O.  R.  R.  Co.,  213  TJ.  S.,  268,  and  For.  Bels.  of  U.  S., 
1910,  p.  666. 


THE  INTERPRETATION  OF  TREATIES  221 

other  terms  of  the  treaty.*  Some  of  the  proposed  Senate 
reservations  to  the  Treaty  of  Versailles  (including  the  Cov- 
enant of  the  League  of  Nations)  were  interpretations  in- 
dicating the  meaning  which  the  Senate  attached  to  certain 
of  the  treaty's  provisions.^  The  same  may  be  said  of  Senate 
reservations  to  other  treaties  and  general  international  con- 
ventions, such  as  those  of  the  Hague  and  Algeciras.  In 
order  to  be  binding  as  parts  of  a  treaty,  such  reservations 
must  be  accepted  by  the  President,  and  also  by  the  other 
contracting  party,  or  parties,  although  in  the  latter  case 
consent  may  be  given  only  tacitly.  An  interpretative  dec- 
laration made  by  the  secretary  of  state  and  the  representa- 
tive of  the  foreign  government  at  the  time  of  the  exchange 
of  ratifications  of  a  treaty,  if  not  submitted  to  or  accepted 
by  the  President  and  the  Senate,  will  not  necessarily  be  con- 
sidered binding  upon  our  Government.^ 

Treaties  sometimes  contain  provisions  indicating  the 
method  to  be  pursued  in  settling  any  dispute  which  may 
arise  as  to  their  interpretation.     Thus  the  convention  of 

*Thus  in  advising  and  consenting  to  the  Korean  treaty  of  1882  the  Senate 
passed  a  resolution  stating  its  understanding  of  the  meaning  of  a  clause  in  the 
instrument,  and  requesting  the  President  to  communicate  such  interpretation 
to  the  Korean  government,  on  the  exchange  of  ratifications,  as  the  sense  in 
which  the  United  States  understood  the  same  (Malloy,  Treaties,  I,  340).  This 
was  done;  the  interpretation  was  accepted  by  the  Korean  representative  (For. 
Bels.  of  U.  S.,  1883,  p.  242) ;  and  it  was  thereupon  embodied  in  the  President's 
proclamation  of  the  treaty  (23  Stat,  at  L.,  725).  Cf.  a  similar  case  of  Sena- 
torial interpretation  in  the  Danish  treaty  of  1916  (39  Stat,  at  L.,  1716-17), 
and  the  proposed  reservations  to  the  treaty  of  Versailles. 

'  For  example,  the  reservation  which  provided  that,  in  the  event  of  with- 
drawal from  the  League,  the  United  States  should  be  the  sole  judge  as  to 
whether  all  of  its  international  obligations  and  all  of  its  obligations  under 
the  Covenant  had  been  fulfilled.    Cong.  Eeeord,  Nov.  19,  1919,  vol.  58,  p.  9289. 

•A  case  of  this  sort  occurred  in  connection  with  the  Clayton-Bulwer  treaty 
of  1850.  On  the  exchange  of  ratifications  Bulwer  filed  in  the  State  Depart- 
ment a  declaration  that  the  treaty  was  made  on  the  part  of  the  British  govern- 
ment on  the  understanding  that  it  did  not  apply  to  the  British  settlement  at 
Honduras.  Secretary  Clayton  answered  that  he  so  understood  the  treaty,  but 
that  he  must  not  be  understood  either  to  affirm  or  to  deny  the  British  title  in 
that  region.  The  declaration  was  not  made  to  or  accepted  by  the  President 
and  Senate.  Consequently,  in  spite  of  it.  Secretary  Frelinghuysen  maintained 
in  1882  that  Great  Britain  had  no  right  to  exercise  dominion  anywhere  in 
Central  America,  and  that  if  she  continued  to  do  so,  the  treaty  was  voidable 
at  the  pleasure  of  the  United  States.  For.  Bels.  of  U.  S.,  1882,  p.  276;  Moore's 
Digest  of  Intemat.  Law,  V,  206. 


222  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

1916  in  which  Denmark  ceded  the  Danish  West  Indies  to 
the  United  States  provided:  *^In  case  of  difference  of 
opinion  arising  between  the  high  contracting  parties  in 
regard  to  the  interpretation  or  application  of  this  conven- 
tion, such  differences,  if  they  cannot  be  regulated  through 
diplomatic  negotiations,  shall  be  submitted  for  arbitration 
to  the  permanent  court  of  arbitration  at  the  Hague. ' '  ^ 
^  Again,  special  treaties  have  sometimes  been  entered  into 
with  a  view  to  providing  a  means  of  interpreting  treaties 
in  general.  Thus  in  1908  we  entered  into  several  arbitra- 
tion conventions  in  which  we  undertook  to  submit,  by  special 
agreement,  to  the  permanent  court  of  arbitration  at  the 
Hague  such  international  differences  as  were  of  a  legal 
nature  or  related  to  the  interpretation  of  treaties  between 
the  contracting  parties,  and  could  not  be  settled  by  diplo- 
macy.2 


REFERENCES 

Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 

1917),  pp.  104-5. 
Foster,  J.  W.,  Practice  of  Diplomacy  (Boston,  1906),  Chap.  XIV. 
Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  V,  249-319. 
Crandall,  S.  B.,  Treaties,  Their  Making  and  Enforcement   (2d  ed.,  New 

York,  1916),  Chaps.  XXII-XXIV. 
Devlin,  Treaty  Power  (San  Francisco,  l908).  Sects.  94,  115-132. 

^  39  Stat,  at  L.,  pt.  2,  p.  1714. 

'See,  e.g.,  Malloy,  Treaties,  etc.,  814.  The  United  States  has  frequently  re- 
sorted to  arbitration  to  settle  disputes  involving  the  interpretation  of  treaties. 
A  leading  instance  is  the  North  Atlantic  Coast  Fisheries  Arbitration,  which 
had  for  its  object  to  determine  the  meaning  of  the  phrase  * '  coasts,  bays,  har- 
bors, and  creeks"  in  British  North  America,  as  employed  in  our  treaty  with 
Great  Britain  in  1818  to  denote  the  places  where  the  right  of  the  inhabitants 
of  the  United  States  to  fish  was  recognized.  For  the  proceedings  in  this  arbi- 
tration before  the  Hague  court,  see  Senate  doc.  870,  61st  Cong.,  3d  sess.  (12 
vols.),  and  for  a  brief  account  see  a  paper  by  Eobert  Lansing,  of  counsel  for 
the  United  States,  in  Proceedings  of  the  Lake  Mohonic  Conference  on  Inter- 
national Arbitration,  1911,  pp.  242-9.  For  other  examples,  see  Moore's  Inter- 
national Arbitrations, 


CHAPTER  Xin 

THE  TERMINATION   OF  TREATIES 

IN  taking  up  the  various  methods  by  which  treaties  may  r 
be  terminated  the  fact  must  continue  to  be  borne  in  mind  j 
that  a  treaty  may  be  considered  from  two  points  of  view,  j 
viz.,  as  an  international  contract  and  as  a  law  of  the  landil 
These  aspects  are  two  sides  of  the  same  shield  and  cannot 
be  wholly  dissociated.  Whether  looked  at  from  the  internal 
or  from  the  external  point  of  view,  however,  the  normal 
method  of  terminating  a  treaty  which  contains  no  provision 
for  its  own  termination  is  jEhe  exercise  of  the  same  power 
that  made  the  treaty  in  the  first  placed  This  is  sometimes 
effected  by  making  a  new  treaty  expressly  repealing  or  * 
superseding  a  former  one.  Thus  the  Hay-Pauncefote  treaty 
of  1901,  entered  into  for  the  purpose  of  facilitating  the 
construction  of  a  trans-isthmian  canal,  expressly  superseded 
the  Clayton-Bulwer  treaty  of  1850  relating  to  the  same 
matter.^  Again,  by  the  treaty  of  1902  with  Spain  all 
*  *  treaties,  agreements,  conventions  and  contracts ' '  made  by 
the  United  States  with  that  country  prior  to  the  Treaty  of 
Paris  were,  with  the  exception  of  the  claims  convention  of 
1834,  ** expressly  abrogated  and  annulled.''^  A  treaty  of 
1857  with  Japan  provided  that  Americans  committing  of- 
fenses in  that  country  should  be  tried  by  the  American 
consul  and  punished  according  to  American  laws.  This 
provision  was  not  superseded  by  the  treaty  of  the  following 
year;^  but  in  1899,  under  the  terms  of  a  treaty  of  1894, 
the  extra-territorial  jurisdiction  of  American  consuls  over 

*Malloy,  Treaties,  etc.,  782. 

*  Ibid.,  1710.     To  some  extent  these  prior  treaties  had  already  been  destroyed, 
or  at  least  suspended,  by  the  war  of  1898. 
•Ross  V.  Mclntyre  (In  re  Ross),  140  U.  S.,  453. 

223 


224  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  offenses  of  Americans  in  Japan  was  terminated.^  In 
1911  the  treaty  of  1894  was,  in  turn,  superseded  by  a  new 
treaty.^ 

A  treaty  may  be  terminated,  not  only  by  an  express 
repeal  contained  in  a  later  treaty,  but  by  the  making  of  a 
later  treaty  containing  provisions  which  are  inconsistent 
with  those  of  the  earlier  instrument.  In  such  a  case  the 
later  evidence  of  the  will  of  the  treaty-making  body  prevails 
over  the  earlier.  Thus  the  Webster-Ashburton  treaty  of 
1842  superseded  our  treaty  of  1827  with  Great  Britain,  in  so 
far  as  it  was  inconsistent  with  the  terms  of  that  instrument.^ 
Treaties  are  also  usually  regarded  as  terminated  when  one 
or  more  of  the  contracting  parties  becomes  extinct  through 
dissolution  or  absorption  by  another  state.  In  the  latter 
case  the  termination  is  sometimes  recognized  by  a  new 
treaty  with  the  absorbing  state ;  and  of  course  some  or  all 
of  the  provisions  of  the  extinguished  treaty  may  be  con- 
tinued. Thus  by  a  treaty  of  1904  with  France  the  United 
States  renounced  the  right  of  invoking  the  stipulations  of 
the  treaties  of  1797  and  1824  with  Tunis.'^  As  mil  be  ob- 
served, these  instances  of  the  termination  or  supersession 
of  one  treaty  by  another  arise  primarily  from  the  view  of 

/a  treaty  as  an  international  compact. 

Treaties  may  also  come  to  be  regarded  as  terminated  for 
the  reason  that  their  provisions  have  been  fully  executed. 

'  An  example  is  a  treaty  for  the  cession  of  territory  for  a 
given  compensation,  when  the  transfer  of  sovereignty  over 

*Malloy,  Treaties,  etc.,  1035. 

'Garfield  Charles,  Treaties^  Conventions,  etc.,  Sen.  doc.  1063,  62nd.  Cong., 
3rd  sess.,  p.  77. 

■For  other  examples,  see  Notes  to  Treaties  and  Conventions  between  the 
United  States  and  Other  Powers,  1776-1887  (1889),  p.  1236;  Moore,  Digest  of 
Internat.  Law,  V,  363-4. 

*  Malloy,  Treaties,  etc.,  545.  France,  upon  annexing  Madagascar  in  1896, 
intimated  that  the  maintenance  of  treaties  between  the  United  States  and  the 
African  island  was  inconsistent  with  the  new  order  of  things,  but  that  she 
would  extend  to  Madagascar  "the  whole  of  the  conventions  applicable  to  the 
government  or  citizens  of  the  United  States  in  France  and  in  French  posses- 
sions. ' '    Moore,  Digest  of  Internat.  Law,  V,  347. 


THE  TERMINATION  OF  TREATIES  225 

the  territory  has  been  made  and  the  sum  agreed  upon  has 
been  paid. 

Although  some  early  treaties  were  on  their  face  perma- 
nent, if  not  perpetual,  comparatively  few  stipulating  obliga- 
tions of  continuing  validity  are  now  made  which  do  not 
contain  some  provision  for  their  termination  or  modifica^ 
tion.  Some  run  for  a  term  of  years,  at  whose  expiration 
they  automatically  lapse  unless  expressly  renewed.  Others 
are  terminable  within  a  certain  time  after  due  notice  is 
given ;  and  either  party  may  give  such  notice,  in  some  cases, 
at  any  time  after  the  treaty  has  gone  into  effect  and  in 
others,  upon  the  expiration  of  a  stipulated  term  of  years. 
This  method  of  termination  is  called  a  ^  *  denunciation. ' ' 

As  a  rule,  a  treaty  does  not  itself  designate  the  officer 
or  organ  of  our  Government  in  whom  is  vested  the  authority 
to  give  the  stipulated  notice,  for  this  is  a  matter  of  munici- 
pal law  and  not  an  appropriate  subject  of  international 
agreement.  Naturally,  therefore,  there  has  been  some  dif- 
ference of  opinion  as  to  what  officer  or  agency  is  to  be 
regarded  as  possessing  the  power.  It  falls,  of  course,  to 
the  President,  or  the  secretary  of  state  or  other  agent  act- 
ing under  the  President 's  orders,  to  transmit  the  notice ;  for 
the  executive  is  the  only  branch  which  has  the  right  to 
carry  on  correspondence  with  foreign  governments.  But 
the  important  question  remains  whether  the  President  may 
act  on  his  own  initiative  and  authority  in  giving  such 
notice,  or  whether  he  can  act  only  when  authorized  by  Con- 
gress, or  perhaps  by  the  Senate. 

TERMINATION    BY    EXECUTIVE    ACTION 

In  at  least  one  instance  the  President  acted  on  his  owUj 
initiative  and  without  authorization  or  ratification  by  any( 
other  branch  of  the  Government.    This  occurred  in  1899, 
when,  in  view  of  the  construction  placed  by  Switzerland 
upon  the  most-favored-nation  clauses  of  cur  treaty  of  1850 


226  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

with  that  country,  Secretary  Hay  instructed  our  minister 
at  Berne  to  deliver  to  the  President  of  the  Swiss  Confedera- 
tion notice  of  our  intention  to  arrest  the  operation  of  those 
clauses  of  the  treaty;  and  such  notice  of  denunciation  was 
accordingly  delivered  and  accepted.^ 

j  Occasionally  the  President  has  taken  the  initiative  in 
/^denouncing  a  treaty,  but  his  act  has  subsequently  been  ap- 
proved or  ** ratified ''  by  a  joint  resolution  of  Congress.  In 
1911  the  failure  of  Russia  to  give  protection,  under  the 
terms  of  our  treaty  of  1832  with  that  country,  to  American 
citizens  of  Hebrew  descent  residing  therein  and  holding 
duly  issued  American  passports,  led  our  Government  to 
denounce  the  treaty  mentioned,  in  accordance  with  its  pro- 
visions. A  joint  resolution  for  this  purpose,  couched  in 
terms  which  were  unacceptable  to  the  President,  passed  the 
House  of  Representatives.  Before  it  was  acted  upon  by 
the  Senate,  however,  the  Secretary  of  State,  by  order  of  the 
President,  directed  our  ambassador  at  St.  Petersburg  to 
notify  the  Russian  Government  of  our  intention  to  termi- 
nate the  treaty.  This  notification  was  delivered  on  Decem- 
ber 17,  and  on  the  following  day  President  Taft  addressed 
a  message  to  the  Senate  informing  that  body  of  his  action 
and  stating :  * '  I  now  communicate  this  action  to  the  Senate, 
as  a  part  of  the  treaty-making  power  of  this  Government, 
with  a  view  to  its  ratification  and  approval.  * '  ^  The  Presi- 
dent *s  course  indicated  his  belief  (1)  that  he  had  a  right 
to  notify  the  foreign  government  of  the  denunciation  of 
the  treaty  prior  to  any  action  by  the  Senate  or  by  Congress 
authorizing  him  to  do  so;  but  (2)  that  subsequent  approval 
by  the  Senate,  as  a  part  of  the  treaty-making  power,  was 
desirable,  if  not  necessary;  and  (3)  that  the  concurrence  of 
the  House  of  Representatives  was  unnecessary.  The  res- 
olution which  was  finally  passed,  however,  as  a  substitute 

^For.  Eels,  of  V.  S.,  1899,  pp.  754-7.  Cf.  CrandaU,  Treaty-Making  and 
Enforcement,  642. 

'  Cong.  Eecord,  December  18,  1911,  vol.  48,  p.  453 ;  House  rept.  179,  62d 
Cong.,  2d  sess. ;  Sen.  doc.  161,  62d  Cong.,  2d  sess. 


THE  TERMINATION  OP  TREATIES  227 

for  the  original  House  resolution,  and  accepted  by  the  Pres- 
ident was  a  joint  resolution,  which  said  simply  that  **the 
notice  thus  given  by  the  President  to  the  Government  of 
Russia  to  terminate  said  treaty  ...  is  hereby  adopted  and 
ratified.''^  Since  a  joint  resolution,  as  distinguished  from 
a  concurrent  resolution,  must  be  signed  by  the  President, 
unless  passed  over  his  veto  by  a  two-thirds  vote,  it  follows 
that,  in  such  a  case,  the  President  participates  in  approving 
his  own  act,  although  he  cannot,  in  a  strictly  legal  sense, 
take  the  initiative  in  doing  so. 

A  case  which  throws  light  upon  the  location  of  the  power 
of  denunciation  arose  during  the  Civil  War  in  connection 
with  the  Eush-Bagot  convention  of  1817  limiting  our  naval 
armament  on  the  Great  Lakes.  In  1864  the  House  of  Rep- 
resentatives passed  a  joint  resolution  with  a  view  to  ter- 
minating this  arrangement.  A  few  months  later,  and  before 
any  action  had  been  taken  on  the  resolution  by  the  Senate, 
Secretary  Seward  instructed  our  ambassador  at  the  court  of 
St.  James  to  give  the  required  six  months*  notice  of  termi- 
nation. Four  months  after  this  notice  was  served  Congress 
passed  and  the  President  approved  a  joint  resolution  which 
stated  that  the  notice  given  by  the  President  *4s  hereby 
adopted  and  ratified  as  if  the  same  had  been  authorized  by 
Congress.'*  A  month  later,  however,  despite  this  legisla- 
tive sanction  of  the  executive  notification  of  termination, 
our  ambassador  at  London,  acting  under  instructions  from 
the  Secretary  of  State,  notified  the  British  Government  of 
our  withdrawal  of  the  previous  notice  of  termination ;  and 
the  agreement  has  since  been  considered  by  both  govern- 
ments as  having  continuing  force  and  effect.^  It  does  not 
appear  that  the  executive  notice  of  withdrawal  of  the  pre- 
vious notice  of  termination  received  any  legislative  sanction, 
or  that  the  ratification  by  Congress  of  the  notice  of  termina- 

*37  Stat,  at  L.,  pt.  1,  p.  627.  See  also  Taft,  Chief  Magistrate  and  His 
Powers,  116-7;    For.  Eels,  of  the  U.  S.,  1911,  pp.  695-9. 

'J.  W.  Foster,  Beport  on  the  Bush-Bagot  Agreement,  Senate  Exec.  Doc.  9, 
52d  Cong.,  2d  sess.,  pp.  24-32. 


228  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

tion  was  ever  rescinded,  or,  finally,  that  these  circumstances 
were  ever  regarded  by  either  government  as  affecting  the 
validity  of  the  withdrawal.  Should  Congress,  however,  en- 
act legislation  inconsistent  with  the  terms  and  spirit  of  the 
agreement,  a  different  question  would  be  presented. 

TREATY    SPECIFICATION    OF    METHOD    OF    TEKMINATION 

The  question  may  be  raised  whether  the  method  of  giving 
notice  by  our  Government  of  the  termination  of  a  treaty 
may  be  indicated  in  the  treaty  itself.  Is  this  a  matter  which 
the  treaty-making  power  is  competent  to  determine?  Two 
things  can  be  said.  The  first  is  that  the  method  of  notice  is 
part  of  the  internal  arrangements  of  our  Government  and 
is  not,  therefore,  an  appropriate  subject  for  treatment  in 
an  international  instrument.  The  second  is  that,  neverthe- 
less, there  is  no  legal  obstacle  to  covering  the  matter  in  a 
treaty,  provided,  of  course,  that  no  attempt  is  made  to  lodge 
the  power  of  giving  notice  of  termination  in  the  hands  of 
an  organ  or  branch  of  the  Government  which  ig  not  con- 
stitutionally  competent  to  exercise  it. 

Article  I  of  the  Covenant  of ,  the  League  of  Nations 
provides  that  any  member  may,  after  two  years '  notice  of 
its  intention  to  do  so,  withdraw  from  the  League,  provided 
it  has  fulfilled  its  international  obligations  and  its  obliga- 
tions under  the  Covenant.  The  majority  of  the  Senate 
voted  in  favor  of  a  reservation  to  this  provision  which  pur- 
ported to  confer  discretionary  power  upon  the  two  houses 
of  Congress  to  give  such  notice  by  concurrent  resolution. 
This  reservation  was  perhaps  not  necessarily  an  attempt — 
on  the  supposition  that  concurrent  resolutions  need  not  be 
signed  by  the  President  ^ — to  exclude  him  from  participa- 
tion in  the  procedure  of  withdrawal.  But  it  was  at  least  an 
effort  to  provide,  through  the  exercise  of  the  treaty  power, 

*  Although  apparently  not  in  accordance  with  the  Constitution,  it  is  estab- 
lished by  custom  that  in  cases  not  involving  legislation  concurrent  resolutions 
need  not  be  signed  by  the  President. 


THE  TERMINATION  OF  TREATIES  229 

an  alternative  method  of  terminating  the  treaty  of  peace, 
in  so  far  as  that  instrument  concerned  our  membership  in 
the  League  of  Nations.  The  President  could  certainly  not 
thus  be  stripped,  even  with  his  consent,  of  any  constitu- 
tional power  that  he  may  have  of  effecting  the  termination 
of  a  treaty,  and  such  a  concurrent  resolution  would  have  no 
interliational  validity  if  he  were  opposed  to  the  policy  in- 
volved. It  would  merely  inform  him  of  the  wishes  of  Con- 
gress, which  he  could  not  be  compelled  against  his  will  to 
carry  out.  Otherwise,  hopeless  confusion  would  result  from 
divergent  views  of  the  two  authorities  upon  such  ques- 
tions as  the  termination  of  the  treaty  or  our  withdrawal 
from  the  League.^ 

The  further  question  arises  whether  it  would  be  feasible 
to  provide,  by  a  stipulation  in  the  treaty  itself  or  otherwise, 
that  a  treaty  should  be  terminated  by  notice  given  by  a 
designated  authority,  not  at  any  specified  time,  but  upon 
the  ascertainment  by  such  authority  of  the  existence  of  a 
certain  state  of  facts.  In  the  light  of  our  constitutional 
law  and  practice,  and  on  the  analogy  of  the  doctrine  laid 
down  by  the  Supreme  Court  in  the  case  of  Field  v,  Clark,^ 
as  well  as  by  the  Judiciary  Committee  of  the  Senate  in  its 
report  on  the  proposed  special  treaty  of  1919  with  France,^ 

*For  the  Senatorial  debate  on  the  reservation,  see  Cong.  Eecord,  November 
7-8,  1919,  vol,  58,  pp.  8543  £f.,  8599  ff.  Cf.  President  Wilson's  letter  to  Senator 
Hitchcock,  in  which  he  said :  ' '  May  I  suggest  that  with  regard  to  the  possible 
withdrawal  of  the  United  States,  it  would  be  wise  to  give  to  the  President  the 
right  to  act  upon  a  resolution  of  Congress  in  the  matter  of  withdrawal?  In 
other  words,  it  would  seem  to  be  permissible  and  advisable  that  any  resolution 
giving  notice  of  withdrawal  should  be  a  joint  rather  than  a  concurrent  resolu- 
tion. I  doubt  whether  the  President  can  be  deprived  of  his  veto  power  under 
the  Constitution,  even  with  his  own  consent.  The  use  of  a  joint  resolution 
would  permit  the  President,  who  is,  of  course,  charged  by  the  Constitution 
with  the  conduct  of  foreign  policy,  to  merely  exercise  a  voice  in  saying  whether 
so  important  a  step  as  withdrawal  from  the  League  of  Nations  should  be  ac- 
complished by  a  majority  or  by  a  two-thirds  vote.  The  Constitution  itself 
providing  that  the  legislative  body  (sic)  was  to  be  consulted  in  treaty-making 
and  having  prescribed  a  two-thirds  vote  in  such  cases,  it  seems  to  me  that 
there  should  be  no  unnecessary  departure  from  the  method  there  indicated.'' 
Cong.  Eecord,  February  9,  1920,  vol.  59,  p.  2799. 

>143  U.  S.,  649. 

•  Cong.  Eecord,  Sept.  22,  1919,  vol.  58,  pp.  6044-5, 


230  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

there  would  seem  to  be  no  objection  to  such  procedure — 
especially  if  judgment  or  discretion  is  involved  in  the  ascer- 
tainment of  the  existence  of  the  given  state  of  facts  ^  — 
provided  that  the  authority  so  designated  should  be  the 
President,  or  the  secretary  of  state  acting  under  his 
direction,  and  not  some  inappropriate  agency,  such  as  the 
governor  of  New  York,  or  the  mayor  of  Chicago,  or  even 
the  two  houses  of  Congress  acting  alone,  by  mere  majority 
vote,  without  the  concurrence  of  the  President.  As  a  matter 
of  fact,  when  the  President  acts  in  giving  notice  of  the 
termination  of  a  treaty,  even  though  under  legislative  au- 
thorization (provided  that  no  exact  time  limit  is  specified)^ 
he  does  so  upon  his  own  ascertainment  of  the  existence  of  a 
certain  state  of  facts,  viz.,  that  the  circumstances  of  our 
internal  affairs,  as  well  as  of  our  diplomatic  relations,  are 
propitious  for  the  giving  of  such  notice. 

The  proposed  special  treaty  with  France,  drawn  up  in 
1919,  provided  that  it  should  *  ^  continue  in  force  until,  on  the 
application  of  one  of  the  parties  to  it,  the  council  [of  the 
League  of  Nations]  acting,  if  need  be,  by  a  majority,  agrees 
that  the  League  itself  affords  sufficient  protection.'*  The 
constitutionality  of  this  treaty  was  affirmed  by  the  Judiciary 
Committee  of  the  Senate.^  At  first  sight,  this  provision 
would  seem  to  confer  upon  an  international  body  the  power 
of  terminating,  at  its  discretion,  a  treaty  to  which  the  United 
States  is  a  party.  The  Council  would  doubtless  have  to  use 
discretion  in  determining  whether  the  League  affords  suf- 
ficient protection.  But  the  action  of  the  Council  would  not 
directly  terminate  the  treaty  nor  prevent  its  renewal.  The 
treaty  merely  adopted  the  date  of  the  action  of  the  League 
on  this  matter  as  the  date  of  termination,  instead  of  fixing 
a  calendar  date  or  a  definite  number  of  years  of  duration. 

*  Cf .  the  Senate  debate  on  the  reservation  to  the  German  peace  treaty  relating 
to  withdrawal  of  the  United  States  from  the  League  of  Nations.  Cong.  Record, 
November  8,  1919,  vol.  58,  pp.  8599  ff. 

'  Cong.  Record,  Sept.  22,  1919,  vol.  58,  pp.  6044-5. 


^ 


THE  TERMINATION  OF  TREATIES  231 

TERMINATION  ON  CONGRESSIONAL.  AUTHORIZATION 


On  several  occasions  Congress,  by  act  or  joint  resolution, 
has  assumed  to  authorize  the  President  to  give  notice  of 
the  termination  of  a  treaty  whose  terms  provided  that  it 
might  be  terminated  on  giving  a  specified  notice.  Thus  by 
a  joint  resolution  of  April  27,  1846,  Congress  undertook  to 
'  *  authorize ' '  the  President,  *  ^  at  his  discretion, ' '  to  give  the 
British  Government  notice  of  the  termination  of  the  conven- 
tion of  1827  concerning  the  joint  occupation  of  the  North- 
west territo^^/  Such  action  on  the  part  of  Congress  had 
been  recommended  by  President  Polk  in  his  first  annual 
message.^  In  his  annual  message  of  1854  President  Pierce 
informed  Congress  that  he  deemed  it  expedient  that  notice 
be  given  to  the  Government  of  Denmark  of  the  intention  of 
our  Government  to  terminate  the  Danish  treaty  of  1826,  in 
accordance  with  its  terms.^  A  few  months  later  the  Senate 
unanimously  adopted,  in  executive  session,  a  simple  resolu- 
tion ^*  authorizing '^  the  President  *^at  his  discretion '^  to 
give  the  contemplated  notice ;  and  the  notice  was  shortly 
afterwards  given.*  This  case  differed  from  the  one  pre- 
viously mentioned  in  that  legislative  authorization  was 
given  through  a  Senate  resolution  merely^  and  not  through 
a  joint  resolution.  The  legality  of  the  action  taken  was 
upheld  in  a  report  of  the  Senate  Committee  on  Foreign 
Eelations.^  A  joint  resolution  approved  January  18,  1865, 
stipulated  that  notice  be  given  of  the  termination  of  the 
Canadian  reciprocity  treaty  of  1854  with  Great  Britain,  in 
accordance  with  its  provisions,  and  the  President  was 
charged  with  the  communication  of  such  notice   to   the 

*9  Stat,  at  L.,  109;    Malloy,  Treaties,  etc.,  644. 

'Richardson,  Mess,  and  Pap.  of  the  Presidents,  IV,  395. 

'Richardson,  op.  cit.,  V,  279. 

*  Richardson,  op.  dt.,  V,  334;  Reports  of  Senate  Committee  on  For.  Rels., 
Sen.  doc.  231,  56th  Cong.,  2d  sess.,  VIII,  107-8;  Bartram  v.  Eobertson,  122 
U.  S.,  116;  Sen.  Exec.  Journal,  IX,  431. 

"Sen.  doc.  231,  loc.  cit.  See  also  ibid.,  VIII,  p.  66;  Sen.  rept.  195,  34th 
Cong.,  Ist  sess..  Sen.  rept.  97,  34th  Cong.,  1st  sess.,  reprinted  in  Cong.  Becord« 
vol.  58,  Nov.  8,  1919,  p.  8126. 


232  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

British  Government.*  Legislative  authorization,  it  should 
be  observed,  can  be  given  by  act  as  well  as  by  joint  resolu- 
tion. Thus  in  the  Seamen's  Act  of  1915  Congress  ''re- 
quested and  directed'*  the  President  to  give  notice  of  the 
termination  of  certain  treaty  provisions  in  conflict  with  the 
measure.^ 

The  question  may  be  raised  as  to  the  extent  of  the  bind- 
ing force  of  such  legislative  provisions.  Is  the  President 
bound  to  give  notice  of  termination  when  directed  by  Con- 
gress to  do  so?  Practical  considerations  connected  with 
the  expediency  of  maintaining  harmonious  relations  be- 
tween the  executive  and  legislative  branches,  as  well  as 
between  our  Government  and  other  governments,  may  re- 
quire the  President  to  give  the  specified  notice.  Where 
the  President  is  unable  to  enforce  a  treaty  as  law  of  the 
land  without  the  cooperation  of  Congress,  and  Congress  not 
only  does  not  cooperate,  but  passes  legislation  in  conflict 
with  the  treaty,  the  President  is  practically  bound  in  the 
international  sense,  and  legally  bound  in  the  municipal 
sense,  to  consider  the  treaty  terminated  and  to  notify  the 
foreign  governments  accordingly.  Thus  in  the  case  of  the 
Seamen 's  Act  of  1915  the  President  was  placed  under  prac- 
tical compulsion  to  give  the  required  notices,  and  under 
legal  compulsion  to  consider  the  treaty  provisions  in  ques- 
tion terminated  as  law  of  the  land,  since  the  act  contained 
provisions  conflicting  with  the  treaty  stipulations.  If  the 
notices  had  not  been  given,  the  conflicting  treaty  stipula- 
tions would  have  been  abrogated  as  law  of  the  land  by  uni- 
lateral legislative  act  on  our  part  without  notice  to  the 
other  contracting  parties,  who  would  then  have  had  just 
ground  for  complaint  against  us. 

On  account  of  the  special  power  of  Congress  over  the 

*  13  Stat,  at  L.,  566.  U.  S.  Tariff  Commission :  Beciprocity  and  Commercial 
Treaties  (1919),  pp.  23,  74.  Cf.  a  similar  instance  of  the  termination  of  the 
Belgian  treaty  of  1858,  18  Stat,  at  L.,  287;  For.  Eels,  of  U.  S.,  1874,  p.  64, 
and  ef .  resolution  for  termination  of  Hawaiian  reciprocity  treaty.  Senate  doc. 
206,  57th  Cong.,  2d  sess.,  p.  8. 

*  38  Stat,  at  L.,  pt.  1,  p.  1184. 


THE  TERMINATION  OF  TREATIES  233 

regulation  of  commerce  and  custom  duties,  this  general 
situation  is  especially  likely  to  arise  in  connection  with  the 
termination  of  commercial  agreements.  In  1909  Congress 
provided  in  the  Payne- Aldrich  tariff  act  that  the  President 
should  *^have  power *■'  and  that  it  should  be  **his  duty*'  to 
notify  the  foreign  governments  with  which  we  had  commer- 
cial agreements,  authorized  by  the  Dingley  tariff  act  of 
1897,  of  the  termination  of  such  agreements  in  conformity 
with  their  terms.^  After  the  act  was  passed  the  Secretary 
of  State,  who  had  already  sent  out  preliminary  notices, 
definitively  notified  a  number  of  foreign  governments  of 
the  intention  of  our  Government  to  terminate  these  agree- 
ments ;2  and  when  the  French  government  protested,  the 
acting  Secretary  of  State  replied :  ^*  As  you  are  aware,  the 
President  of  the  United  States,  in  giving  the  formal  notices 
on  August  7,  1909,  has  been  obliged  to  follow  implicitly  the 
prescriptions  of  the  new  tariff  act  of  the  United  States.  *  '^ 

Although  the  President  may  thus  be  practically  compelled  I 
to  give  the  specified  notice,  from  the  legal  point  of  view  the/ 
situation  is  somewhat  different.    Even  if  Congress  should! 
enact  a  law  directing  the  President  to  give  notice  of  the\ 
termination  of  a  treaty,  and  should  pass  it  over  his  veto  by  \ 
a  two-thirds  vote,  there  would  be  no  means  of  legally  forcing 
the  execution  of  the  mandate — at  all  events,  none  short  of 
impeachment.    If,  indeed,  the  President  could  be  legally 
(iofflMul^  to  execute  such  a  mandate,  he  would  sink  into  the 
position  ^of  a  mere  ministerial  agent  of  Congress,  without 
discretion  in  conducting  this  phase  of  our  foreign  relations. 
It  can  hardly  have  been  the  intention  of  the  f ramers  of  the 
Constitution  that  he  should  occupy  such  a  position.     This, 
of  course,  is  not  equivalent  to  either  affirming  or  denying 
that  the  President  could,  in  every  case,  act  on  his  own 
initiative  in  terminating  a  treaty  by  notice  to  that  effect  in 

*  36  Stat,  at  L.,  pt.  1,  p.  83 ;    Malloy,  op.  cit.,  542. 

*For.  Bels.  of  U.  S.,  1909,  pp.  46,  248,  270,  288,  389,  etc.,  U.  S.  Tariff 
Commission,  Beciprocity  and  Commercial  Treaties,  pp.  31,  227-8. 
'For.  Bels.  of  U.  S.,  1909,  p.  251. 


234  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

accordance  with  its  terms,  without  waiting  for  legislative 
authorization. 

Congress  has  sometimes  undertaken  not  only  to  direct  the 
President  to  give  notice  of  the  termination  of  a  treaty  but 
also  to  specify  the  time  within  which,  or  the  date  on  which, 
the  notice  shall  be  given.  Thus  in  the  Seamen's  Act  already 
referred  to  the  President  was  directed  to  give  the  specified 
notice  within  ninety  days  after  the  passage  of  the  act,  while 
by  the  tariff  act  of  1909  he  was  directed  to  give  the  required 
notices  to  foreign  governments  within  ten  days  after  the 
passage  of  the  act.  In  a  joint  resolution  of  March  3,  1883, 
Congress,  after  declaring  that  certain  sections  of  the  treaty 
of  1871  between  the  United  States  and  Great  Britain  ought 
to  be  terminated  at  the  earliest  possible  time,  directed  the 
President  to  communicate  the  proper  notice  to  the  British 
Government  on  the  first  day  of  July  following,  or  as  soon 
thereafter  as  might  be.^  The  first  day  of  July  of  that  year 
fell  on  Sunday,  and  the  notice  was  officially  communicated 
on  the  following  day.^  As  a  matter  of  comity,  the  Presi- 
dent may  thus  comply  with  the  directions  of  Congress  as 
to  the  time  of  giving  notice.  But  if  he  cannot  legally  be 
compelled  to  give  notice  at  all,  it  follows  that  he  cannot 
regally  be  forced  to  give  it  at  or  within  any  specified  time. 
Unless  he  acts  promptly.  Congress  may  withdraw  the  au- 
thorization. But  if  the  authorization  was  not  essential  in 
the  first  place  withdrawal  of  it  would  be  without  legal  effect. 

This  question  of  the  power  of  Congress  to  compel  the 
President  to  terminate  treaties  was  brought  up  prominently 
by  the  action  of  President  Wilson  in  making  public  his 
intention  not  to  comply  with  the  provision  of  section  34 
of  the  Merchant  Marine  Act  of  June  5, 1920,  which  *  *  author- 
ized and  directed '^  him  ^*  within  ninety  days  after  this  act 
becomes  law  to  give  notice  to  the  several  governments, 
respectively  parties  to  such  treaties  or  conventions,  that  so 

» 22  Stat,  at  L.,  641. 

'For.  Eels,  of  U.  S.,  1883,  pp.  414,  441. 


THE  TERMINATION  OP  TREATIES  235 

much  thereof  as  imposes  any  restriction  on  the  United 
States  (as  to  discriminatory  custom  duties  and  tonnage 
dues)  will  terminate  on  the  expiration  of  such  periods  as 
may  be  required  for  the  giving  of  such  notice  by  the  pro- 
visions of  such  treaties  or  conventions. ' '  ^  It  has  been 
argued  that  the  President  could  have  been  compelled  by 
Congress  to  give  the  notice  of  termination  specified  by  this 
act  by  virtue  of  its  power  to  regulate  foreign  commerce  and 
to  pass  all  laws  necessary  and  proper  to  carry  into  execu- 
tion its  other  legislative  powers  and  all  other  powers  of  th^ 
Government.^  If,  however,  this  view  is  correct,  it  would  be 
equally  true  that,  in  the  exercise  of  such  powers.  Congress 
could  compel  the  President  and  Senate  to  make  treaties 
which  it  should  consider  necessary  and  proper  for  the  regu- 
lation of  foreign  commerce.  But  it  will  hardly  be  contended 
that  Congress  can  do  this.  Congress  could,  of  course,  ter- 
minate the  treaties  as  law  of  the  land  by  passing  conflicting 
legislation  which  the  President  would  be  bound  to  enforce ; 
but  the  international  validity  of  the  treaties  would  notjpe 
thereby  affected.  The  notices  which,  in  the  act  of  1920, 
^Congress  directed  should  be  given  did  not  provide  for  the 
termination  of  the  treaties  in  their  entirety,  but  only  of  such 
portions  as  laid  the  United  States  under  an  obligation  not 
to  impose  discriminatory  duties.  As  the  treaties  were  recip- 
rocal in  character,  it  would  hardly  be  supposed  that  the 
foreign  nations  concerned  would  be  willing  to  allow  the 
United  States  to  relieve  itself  of  its  obligations  under  them 
without  availing  themselves  of  a  similar  privilege.  The 
action  of  Congress  was  aimed,  however,  as  far  as  the 
express  provisions  went,  only  at  the  partial  termination  of 
the  treaties.  But  the  notices  were  not  given  as  required  in 
the  act. 

When  Congress  attempted  in  1879  to  secure  the  partial 
abrogation  of  a  treaty  with  China,  President  Hayes,  in  veto- 

»41  U.  S.  Stat,  at  L.,  1007;  New  YorJc  Times,  September  25,  1920. 
*  Weekly  Eeview,  October  6, 1920,  p.  282. 


236  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ing  the  bill,  said:  **As  the  power  of  modifying  an  existing 
treaty,  whether  by  adding  or  striking  out  provisions,  is  a 
part  of  the  treaty -making  power  under  the  Constitution,  its 
exercise  is  not  competent  for  Congress,  nor  would  the  assent 
of  China  to  this  partial  abrogation  of  the  treaty  make  the 
action  of  Congress  in  thus  procuring  an  amendment  of  a 
treaty  a  competent  exercise  of  authority  under  the  Constitu- 
tion. The  importance,  however,  of  this  special  considera- 
tion seems  superseded  by  the  principle  that  a  denunciation 
of  a  part  of  a  treaty  not  made  by  the  terms  of  the  treaty 
itself  separable  from  the  rest  is  a  denunciation  of  the  whole 
treaty.'*^ 

TREATIES    CONTAINING    NO    PEOVISION    FOB    TERMINATION 

\ 

We  have  been  considering  treaties  which  contain  pro- 
visions for  their  own  termination,  as  most  treaties  now  do. 
The  United  States  has,  however,  at  times  entered  into 
treaties  which,  lacking  any  provision  of  this  kind,  were,  on 
their  face,  permanent,  or  even  perpetual.  Of  this  character 
was  the  Clayton-Bulwer  treaty  of  1850  with  Great  Britain 
concerning  a  trans-isthmian  canal.  About  thirty  years 
after  this  treaty  was  made,  however,  the  United  States  be- 
came dissatisfied.  Secretary  Blaine  characterized  the  in- 
strument as  a  compact  **misunderstandingly  entered  into, 
imperfectly  comprehended,  contradictorily  interpreted,  and 
mutually  vexatious/'  2  ^nd  argued  plausibly  that,  in  view  of 
the  remarkable  development  of  the  United  States  on  the 
Pacific  Coast,  together  with  other  changes  that  had  taken 
place,  the  treaty,  on  the  principle  of  rebus  sic  stcmtihm, 
should  be  modified,  if  not  considered  terminated.^  This 
view  was  not  accepted  by  the  British  Government,  but  the 

*  Richardson,  Mess,  and  Pap.  of  the  Presidents,  VII,  519. 

'  For.  Eels,  of  U.  8.,  1881,  p.  568.  Cf .  Eeport  of  the  House'  Committee  on 
Foreign  Affairs  on  a  House  resolution  requesting  the  President  to  abrogate  the 
Clayton-Bulwer  treaty.  House  rept.  1121,  46th  Cong.,  2d  sess.  (1880),  and 
Bigelow,  Breaches  of  Anglo-American  Treaties,  Chaps.  IV  and  V. 

•  Ibid.,  554-9 ;  Henderson,  American  Diplomatic  Questions,  144  ff. 


THE  TERMINATION  OP  TREATIES  237 

agitation  continued,  and  in  1891  the  Senate  committee  on 
foreign  relations  unanimously  declared  that,  in  its  opinion, 
the  convention  of  1850  had  become  obsolete.^  After  the 
Spanish-American  war  some  hotheads  in  the  lower  house  of 
Congress  were  in  favor  of  abrogating  or  repealing  the 
treaty  outright.  Wiser  men  in  the  administration  and  in 
the  Senate  recognized,  however,  that  the  honorable  method 
of  securing  release  from  a  treaty  which  is  on  its  face  per- 
petual is  to  make  a  new  treaty  superseding  it.  Resolutions 
were  accordingly  introduced  in  the  Senate  requesting  the 
President  to  open  negotiations  with  Great  Britain  looking 
to  the  modification  or  abrogation  of  the  objectionable  com-  1 
paot.2  The  negotiations  were  instituted,  and  in  1901  the^  ' 
Hay-Pauncefote  treaty,  as  has  been  indicated,  superseded, 
in  express  terms,  the  earlier  agreement.^ 

CONGRESSIONAL    TERMINATION    OF    TREATIES    AS    LAW 
OF    THE    LAND 

When,  as  in  the  case  just  mentioned,  a  treaty  provides  , 
no  method  for  its  own  termination,  but  is  on  its  face  per-  \ 
petual,  the  President  cannot,  by  his  sole  act,  terminate  it  \ 
either  as  an  international  compact  or  as  a  law  of  the  land. 
It  can  be  terminated  absolutely,  i.e.,  both  internationally 
and  municipally,  only  by  the  making  of  a  new  treaty  super- 
seding the  earlier  one;*  although  it  may  be  terminated  in 
its  aspect  merely  as  law  of  the  land  by  an  act  of  Congress.j 
Such  an  act  may  provide  expressly  for  the  abrogation  of 
the  treaty  as  law  of  the  land,  or  it  may  abrogate  it  in- 
directly, e.g.,  through  necessary  implication  of  conflicting 

*  Sen.  rept.  1944,  Slst  Cong.,  2d  sess.,  pp.  4-5. 
'Cong.  Eecord,  December  8,  1898,  vol.  32,  jv  55;  ibid.,  December  13,  1900, 

vol.  34,  p.  265. 

^  See  History  of  Amendments  Proposed  to  the  Clayton-Bulwer  Treaty,  Senate 
doc.  746,  6l8t  Cong.,  3rd  sess.,  1911;  Diplomatic  History  of  the  Pa/nama  Canal, 
Senate  doc.  474,  63rd  Cong.,  2d  sess.,  1914;  also  Senate  doc.  456,  63rd 
Cong.,  2d  sess. 

*  Except  that,  in  some  cases,  it  can  be  terminated  in  both  aspects  by  a 
Congressional  declaration  of  war. 


238  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

or  inconsistent  legislation.  The  only  instance  of  express 
abrogation  occurred  in  1798,  when,  after  declaring  that  the 
treaties  of  1778  between  the  United  States  and  France  had 
been  repeatedly  violated  by  the  French  Government,  and 
that,  in  spite  of  our  remonstrance,  that  Government  con- 
tinued to  pursue  against  the  United  States  *'a  system  of 
predatory  violence,  infracting  the  said  treaties  and  hostile 
to  the  rights  of  a  free  and  independent  nation, '^  Congress 
enacted  that  the  United  States  **are  of  right  freed  and  ex- 
onerated from  the  stipulations''  of  such  treaties,  and  that 
* '  the  same  shall  not  henceforth  be  regarded  as  legally  oblig- 
atory on  the  Government  or  citizens  of  the  United  States. ' '  ^ 
By  basing  the  termination  of  the  treaties  on  the  adverse 
breach  by  France  and  declaring  them  no  longer  obligatory 
on  the  Government  of  the  United  States,  the  language  of 
this  act  gave  evidence  of  the  intention  of  Congress  to  ter- 
minate the  treaties,  not  only  as  law  of  the  land,  but  also  as 
international  compacts.  That  such  was  the  effect  of  the  act 
was  held  by  the  Court  of  Claims  of  the  United  States, 
which  declared  that  *  *  a  treaty  which  on  its  face  is  of  indef- 
inite duration  and  which  contains  no  clause  providing  for 
its  termination  may  be  annulled  by  one  of  the  parties  under 
certain  circumstances.  As  between  the  nations  it  is  in  its 
nature  a  contract,  and  if  the  consideration  fail,  for  example, 
or  if  its  important  provisions  be  broken  by  one  party,  the 
other  may,  at  its  option,  declare  it  terminated.  .  .  .  We 
are  of  opinion  that  the  circumstances  justified  the  United 
States  in  annulling  the  treaties  of  1778;  that  the  act  was 
a  valid  one,  not  only  as  a  municipal  statute  but  as  between 
the  nations ;  and  that  thereafter  the  compacts  were  ended. ' '  ^ 
The  contention  that  the  act  of  Congress  was  a  valid  inter- 
national abrogation  of  the  treaties  was  not,  however,  ac- 

*1  Stat,  at  L.,  578;  Moore,  Digest  of  Intemat.  Law,  V,  356;  J.  B.  Scott 
[ed.],  The  Controversy  over  Neutral  Bights  between  the  United  States  and 
France,  1797-1800,  65. 

'Hooper  v.  United  States,  22  C.  Cls.,  408;  J.  B.  Scott  [ed.].  The  Controversy 
over  Neutral  Bights  between  the  United  States  and  France,  1797-1800,  350- 
405. 


THE  TERMINATION  OF  TREATIES  239 

quiesced  in  by  the  French  Government,  and  two  years  after- 
wards that  Government's  position  in  the  matter  was  ap- 
parently to  some  extent  recognized  as  just  by  the  United 
States.^ 

In  this  case  Congress  assumed  to  decide  that  the  adverse 
breach  was  sufficient  cause  for  considering  the  treaties  ter- 
minated. The  act  in  question,  however,  together  with  other 
measures  passed  about  the  same  time,  may  be  considered 
as  having  constituted  a  declaration  of  partial  war  or  limited 
hostilities  ;2  and  the  treaties  may  be  regarded  as  having 
been  terminated  on  account  of  the  declaration  and  existence 
of  such  a  state  of  hostilities.^ 


TERMINATION    BY    ADVERSE    BREACH 

That  Congress  has  at  least  a  qualified  right  to  pronounce 
a  treaty  terminated  on  account  of  adverse  breach  was  ap- 
parently recognized  by  President  Grant  in  1876,  when,  in  a 
message  to  Congress,  he  declared  that  the  action  of  Great 
Britain  in  requiring  the  agreement  of  the  United  States  to 
conditions  *  not  provided  for  in  the  extradition  article  of 
the  Webster-Ashburton  Treaty  of  1842  before  surrender- 
ing fugitives  from  justice,  *4f  adhered  to,  cannot  but  be 
regarded  as  the  abrogation  and  annulment  of  the  article  of 
the  treaty  on  extradition.'*  Continuing,  he  said:  *^It  is 
for  the  wisdom  of  Congress  to  determine  whether  the  article 
of  the  treaty  relating  to  extradition  is  to  be  any  longer 
regarded  as  obligatory  on  the  Government  of  the  United 
States  or  as  forming  part  of  the  supreme  law  of  the  land." 
But  he  then  added:     ** Should  the  attitude  of  the  British 

*  Moore,  Digest  of  Intemat.  Law.  V,  357-8. 

*Bas  V.  Tingy,  4  Dall.,  37;  Talbot  v.  Seeman,  1  Cranch,  1,  reprinted  in  J. 
B.  Scott  [ed.],  The  Controversy  over  Neutral  Bights  between  the  United  States 
and  France,  1797-1800,  104-152. 

"  Cf .  Corwin,  National  SupreTnaey,  79. 

*  Viz.,  that  the  United  States  agree  that  persons  extradited  from  Great 
Britain'  should  not  be  tried  in  the  United  States  for  offenses  other  than 
those  for  which  extradition  had  been  demanded. 


240  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Government  remain  unchanged,  I  shall  not,  without  an  ex- 
pression of  the  wish  of  Congress  that  I  should  do  so,  take 
any  action  either  in  making  or  granting  requisitions  for 
the  surrender  of  fugitive  criminals  under  the  treaty  of 
1842. >>i  Thus,  while  asserting  that  it  is  for  Congress  to 
determine  whether  a  treaty  provision  is  still  binding  on  our 
Government,  the  President,  in  the  next  breath,  assumes 
that,  in  the  absence  of  any  pronouncement  by  Congress  on 
the  matter,  he  has  the  right  to  consider  the  treaty  provision 
terminated  by  declining  to  enforce  it.^ 

In  other  cases  the  Executive  has  assumed  to  exercise  a 
concurrent,  if  not  an  exclusive,  power  to  decide  that  events 
happening  outside  of  our  jurisdiction  have  had  the  effect 
of  terminating  treaties  to  which  we  were  a  party.  Thus  in 
1815  Monroe,  while  secretary  of  state,  notified  the  Dutch 
minister  that  treaties  between  the  United  States  and  some 
of  the  European  powers,  including  the  treaty  of  1782  with 
the  Netherlands,  had  been  annulled  **by  causes  proceeding 
from  the  state  of  Europe  for  some  time  past."  ^ 

When  a  foreign  government  with  which  the  United  States 
has  a  treaty  notifies  our  Government  of  the  termination  of 
the  treaty  in  accordance  with  its  provisions,  or  when  a  third 
power  absorbs  a  country  with  which  the  United  States  has 
treaties  and  notifies  our  Government  of  the  termination  of 
such  treaties  by  virtue  of  that  fact,  such  notification  of  ter- 
mination is  received  and  acquiesced  in  by  the  Executive,  and 
no  action  by  the  legislative  department  is  necessary  to 
effectuate  the  termination.  Thus  in  1897  the  secretary  of 
state  accepted  on  behalf  of  our  Government  the  denuncia- 
tion of  a  treaty  by  the  Dominican  Eepublic  and  declared 

*  Richardson,  op.  dt.,  VII,  372-3,  414-6;  For.  Bels.  of  the  V.  S.,  1876,  204- 
309;  Moore,  Digest  of  Internat.  Law,  V,  321-2.  The  operation  of  the  treaty 
was  suspended  for  six  months  and  then  revived.  For  the  diplomatic  correspon- 
dence in  the  case,  see  House  Exec.  Doc.  173,  44th  Cong.,  1st  sess.   (1876). 

^It  should  be  remembered,  however,  that  the  treaty  provision  in  question 
was  susceptible  of  termination  upon  notice. 

•For.  Bels.  of  the  U.  8.,  1873,  II,  pp.  715-6,  720-7;  Moore,  Digest  of  Internat. 
Law,  V,  344-5. 


THE  TERMINATION  OF  TREATIES  241 

the  treaty  terminated  by  virtue  of  that  act.*  Again,  when 
Madagascar  was  definitely  absorbed  by  France  in  1896  our 
State  Department,  on  being  notified  of  the  fact  of  the 
establishment  of  French  control  in  the  island,  recognized 
the  termination  of  our  consular  treaty  with  Madagascar  by 
instructing  our  consuls  there  to  discontinue  the  operations 
of  American  consular  courts  provided  for  by  the  now  obso-/ 
lete  treaty.^  That  the  Executive  department  is  competent 
to  decide  whether  the  breach  of  a  treaty  by  the  other  con 
tracting  party  is  sufficient  to  terminate  it  was  indicated  by 
the  Supreme  Court  in  the  Charlton  extradition  case,  when 
it  said:  **The  Executive  department  having  thus  elected 
to  waive  any  right  to  free  itself  from  the  obligation  tc 
deliver  up  its  own  citizens,  it  is  the  plain  duty  of  this  courf 
to  recognize  the  obligation  to  surrender  the  appellant. '  *  ^ 

THE    COURTS    AND    POLITICAX,    QUESTIONS 

As  indicated  in  the  decision  just  cited,  the  courts  follow 
the  determinations  of  the  political  departments  of  the 
Government  when  passing  upon  the  question  whether  a 
treaty  has  been  terminated  by  adverse  breach  or  other  cause 
or  is  still  in  force.  In  the  Charlton  case  the  political  de- 
partment whose  determination  was  held  binding  on  the 
court  was  the  executive.  But  in  other  cases  the  courts  have 
similarly  followed  the  legislature  for  the  very  good  reason 
that  this  authority  determines  the  law  of  the  land,  within 
the  limits  of  the  Constitution,  even  to  the  extent  of  abrogat- 
ing treaties.     As  the  lower  court  remarked  in  the  Charlton 

» For.  BeU.  of  U,  S.,  1897,  p.  126. 

*Ibid.,  1896,  pp.  123-4.  Cf.  Mahoney  v.  U.  S.,  10  Wall.,  62,  where  the 
court  recognized  that  our  treaty  of  1816  with  Algiers  expired  when 
that  country  was  absorbed  by  France  in  1830.  The  court  followed  the  con- 
struction placed  by  the  State  Department  upon  the  act  of  Congress  of  1810 
allowing  salaries  to  consuls  in  certain  countries,  based  impliedly  on  the  assump- 
tion of  the  termination  of  the  treaty  of  1830  as  sanctioned  by  later  acts  of 
Congress.  Our  treaty  with  Hanover  was  abrogated  through  its  annexation  by 
Prussia  in  1867.    For.  Rels.  of  U.  8.,  1875,  p.  479. 

"Charltoni;.  Kelly,  229  U.  S.,  447, 


242  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

case,  the  option  of  considering  the  treaty  terminated  must 
be  exercised  by  the  *  Apolitical  departments — Congress  or 
the  treaty-making  power — possibly  the  executive  power 
within  certain  limitations;  assuredly  not  the  judiciary. '' ^ 

J  Public  rights  accruing  to  the  United  States  under  the 
erms  of  a  treaty  may  be  renounced  and  terminated  by  the 
action  of  the  political  departments  of  the  Government.  Thus 
in  his  message  of  December  3,  1907,  President  Eoosevelt 
asked  authority  of  Congress  to  remit  a  portion  of  the 
Chinese  indemnity  accruing  to  the  United  States  under  the 
convention  between  the  powers  and  China  made  at  the  con- 
clusion of  the  *' Boxer''  troubles  in  1900;  and  authority  to 
do  so  was  granted  by  a  joint  resolution  of  May  25,  1908, 
with  the  proviso  that  a  certain  sum  should  be  reserved  for 
the  payment  of  private  claims  to  be  adjudicated  by  the 
Court  of  Claims.^ 

Although  the  question  of  the  continuing  obligation  of  a 
treaty  is  a  political  one,  the  courts  hold  that  private  rights 
which  have  been  established  by  treaty  survive,  even  though 
the  treaty  is  terminated  through  the  action  of  the  political 
departments  of  the  Government.  Thus  the  Supreme  Court 
held  that  titles  to  land  in  the  United  States  acquired  by 
French  subjects  under  sanction  of  the  treaty  of  1778  were 
not  divested  by  the  abrogation  of  that  treaty,  or  by  the 
expiration  of  the  convention  of  1800.^  The  same  court  held 
also  that  the  war  of  1812  did  not  set  aside  the  treaty  of  1794 
between  the  United  States  and  Great  Britain  to  the  extent 
of  depriving  the  British  Society  for  the  Propagation  of  the 
Gospel  of  property  rights  vesting  under  such  treaty.*    The 

^  Ex  parte  Charlton,  185  Fed.,  880,  cited  by  Crandall,  Treaty-Making  Power, 
464.  Cf.  Terlinden  v.  Ames,  184  U.  S.,  270;  Mahoney  v.  U.  S.,  10  Wall.,  62; 
Hooper  v.  U.  S.,  22  C.  Cls.,  408. 

^35  Stat,  at  L.,  pt.  1,  p.  577;  Malloy,  op.  cit.,  2008;  Am.  Journal  of 
Intemat.  Law,  III,  451-7.  A  part  of  the  sum  thus  remitted  has  been  used  to 
defray  the  expenses  of  Chinese  students  at  American  universities. 

'  Carneal  v.  Banks,  10  Wheat.,  181,  as  summarized  in  Moore,  Digest  of  Inter- 
nat.  Law,  V,  373. 

*  Society,  etc.,  v.  New  Haven,  8  Wheat.,  464  j  Moore,  Digest  of  Intemat.  Law, 
V,  372. 


THE  TERMINATION  OF  TREATIES  243 

kind  of  private  rights  which  thus  continue  despite  the  ter- 
mination or  suspension  of  a  treaty  has  been  further  eluci- 
dated by  the  Supreme  Court  in  the  Chinese  Exclusion  Case 
as  follows :  *  *  The  rights  and  interests  created  by  a  treaty, 
which  have  become  so  vested  that  its  expiration  or  abroga- 
tion will  not  destroy  or  impair  them,  are  such  as  are  con- 
nected with  and  lie  in  property,  capable  of  sale  and  transfer 
or  other  disposition,  not  such  as  are  personal  and  untrans- 
ferable in  their  character. ' '  ^ 

Where  judicial  action  is  necessary  for  enforcement,  the 
Supreme  Court  might  virtually  terminate  a  treaty  as  law 
of  the  land  by  declaring  it  unconstitutional.  This,  however, 
has  never  been  done,  and  probably  would  not  be  done  except 
in  a  clear  case  of  conflict  between  a  treaty  and  the  Constitu- 
tion. 

CONGRESSIONAL  TERMINATION  THROUGH  CONFLICTING 
LEGISLATION 

As  previously  indicated.  Congress  may  terminate  a 
treaty,  at  least  in  its  character  as  a  law  of  the  land,  not 
only  by  enacting  a  law  expressly  abrogating  it,  as  was  done 
in  1798,  but  also  by  enacting  a  law  conflicting  with,  or 
inconsistent  with,  provisions  of  a  prior  treaty.  When  the 
act  of  Congress  is  constitutionally  determinative  of  our 
governmental  policy  toward  a  foreign  nation,  and  when  a 
step  by  our  Government  is  recognized  in  international  law 
as  having  this  effect,  the  act  may  terminate  a  treaty  in  its 
character  of  an  international  compact,  as  well  as  in  that  of 
law  of  the  land.  Thus  an  act  or  joint  resolution  of  Congress 
declaring  a  state  of  war  to  exist  with  a  foreign  country  has 
the  effect  of  terminating,  or  at  least  suspending,  certain 
kinds  of  treaty  arrangements  between  the  United  States 
and  that  country.  As  Justice  Curtis  said  on  circuit,  the 
Constitution  *  *  gives  to  Congress,  in  so  many  words,  power , 
to  declare  war,  an  act  which,  ipso  facto,  repeals  all  treaties/ 

*  130  U.  S.,  581,  609,  cited  in  Moore,  Digest  of  Internat.  Law,  V,  372. 


244  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

J  inconsistent  with  a  state  of  war. ' '  ^  And  the  Supreme  Court, 
speaking  through  Justice  Miller  in  the  Head  Money  Cases, 
declared  that  ^*a  declaration  of  war,  which  must  be  made  by 
Congress,  .  .  .  when  made,  usually  suspends  or  destroys 
existing  treaties  between  the  nations  thus  at  war. '  ^  ^  The 
question  as  to  what  treaties  are  inconsistent  with  a  state  of 
war  and  are  terminated  or  suspended  by  the  outbreak  of 
war,  and  what  treaties  remain  in  force,  is  to  some  extent 
unsettled  in  international  law  and  need  not  be  considered 
here.^  As  already  indicated,  the  question  of  the  effect  of 
war  upon  particular  treaty  stipulations  where  private  rights 
are  involved  has  been  before  the  courts  of  the  United  States 
for  adjudication.  The  matter  has  also  been  the  subject  of 
diplomatic  representations.  Thus  the  State  Department 
took  the  ground  in  1898  that  not  all  treaties  between  the 
United  States  and  Spain  were  abrogated  by  the  war,  as  was 
held  by  the  Spanish  Government,  but  that  those  treaty  pro- 
visions which  were  made  with  reference  to  a  state  of  war 
and  were  expressly  applicable  thereto  found  therein  their 
full  force  and  effect.^  Our  Government  recognized,  how- 
ever, that  the  copyright  agreement  of  1895  between  the  two 
countries  was  suspended  by  the  outbreak  of  war,  although 
it  was  revived,  upon  the  proclamation  of  peace,  without 
express  renewal.^ 

The  power  of  declaring  treaties  terminated  on  account  of 
hostilities  against  the  United  States  has  been,  with  refer- 
ence to  Indian  treaties,  conferred  by  Congress  upon  the 

*  2  Curtis,  C.  C.  Rep.  454. 

'  112  U.  S.,  580. 

*See  G.  B.  Davis,  '*The  Effects  of  War  vqpfin  International  Conventions 
and  Private  Contracts. ' '  Proceedings  of  Am.  Soc.  of  Internat.  Law,  1912,  pp. 
124-132. 

*For.  Bel.  of  V.  S.,  1898,  pp.  774,  972;  Moore,  Digest  of  Internat.  Law,  V, 
376. 

"Crandall,  Treaty-MaTcing,  451.  The  treaty  of  1831  with  Mexico  was 
suspended  by  the  war  or  1846  with  that  country.  The  British  government 
urged  that  the  rights  acquired  by  the.  United  States  under  the  treaty  of  1783 
were  abrogated  by  the  War  of  1812  and  did  not  revive  automatically  by  a 
renewal  of  peace.  The  United  States  denied  this;  although  the  right  of 
British  subjects  to  navigate  the  Mississippi,  under  terms  of  the  treaty  of  1783, 
was  not  thereafter  recognized. 


THE  TERMINATION  OF  TREATIES  245 

President.  "In  cases  where  the  tribal  organization  of  any 
Indian  tribe,''  says  an  act  of  July  5,  1862,  *' shall  be  in 
actual  hostility  to  the  United  States,  the  President  is  hereby 
authorized  by  proclamation  to  declare  all  treaties  with  such 
tribe  to  be  abrogated  by  such  tribe,  if,  in  his  opinion,  the 
same  can  be  done  consistently  with  good  faith  and  legal  and 
national  obligations.''^ 

Not  only  by  an  act  or  joint  resolution  declaring  war,  but 
by  any  legislation  (if  otherwise  constitutional)  conflicting 
with  or  inconsistent  with  the  provisions  of  a  prior  treaty, 
Congress  can  abrogate  a  treaty  in  its  character  as  law  of 
the  land,  to  the  extent,  at  least,  of  such  conflict.  As  early 
as  1851  Attorney-General  Crittenden  held  that  **an  act  of 
Congress  is  as  much  a  supreme  law  of  the  land  as  a  treaty. 
They  are  placed  on  the  same  footing,  and  no  preference  or 
superiority  is  given  to  the  one  or  the  other.  The  last  ex- 
pression of  the  law-giving  power  must  prevail  and  have 
effect,  though  inconsistent  with  a  prior  act;  so  must  an 
act  of  Congress  have  effect,  though  inconsistent  with  a  prior 
treaty.  "2  The  rule  thus  laid  down  has  become  the  settled 
doctrine  of  the  courts.  Thus,  as  the  Supreme  Court  declared 
in  the  Head  Money  Cases,  *  *  so  far  as  a  treaty  made  by  the 
United  States  with  any  foreign  nation  can  become  the  sub^ 
ject  of  judicial  cognizance  in  the  courts  of  this  country,  it 
is  subject  to  such  acts  as  Congress  may  pass  for  its  enforce- 
ment, modification,  or  repeal. '  '^ 

The  treaty  provisions  which  are  most  likely  to  be  repealed  1 
as  law  of  the  land  by  subsequent  conflicting  legislation,  and 

n2  Stat,  at  L.,  528;  E.  S.,  sect.  2080. 

*5  Op.  U.  S.  Atty.-General,  345.  See  also  6  ibid.,  291;  13  ibid.,  357  and 
report  of  the  House  Committee  on  Education  and  Labor  on  the  bill  passed 
in  1879  to  restrict  Chinese  immigration,  Cong.  Eecord,  January  18,  1879,  vol. 
8,  p.  793. 

•112  U.  S.,  580.  See  also  Taylor  v.  Morton,  2  Curtis,  C.  C.  Rep.,  454;  The 
Cherokee  Tobacco,  11  Wall.,  616;  Chae  Chan  Ping  v.  U.  S.,  130  U.  S.,  581; 
Fong  Yue  Ting  v.  U.  S.,  149  U.  S.,  698;  U.  S.  v.  Lee  Yen  Tai,  185  U.  S.,  213; 
La  Abra  Silver  Mining  Co.  v.  U.  S.,  175  U.  S.,  423 ;  Botiller  v.  Dominguez,  130 
IT.  S.,  238.  For  a  collection  of  cases  on  this  point,  with  quotations  from  them, 
see  Extracts  from  Briefs  on  the  Power  of  Congress  over  Treaties^  Senate  doc. 
487,  60th  Cong.,  1st  sess.  (1908). 


246  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

capable  of  being  so  adjudicated  by  the  courts,  are  those 
which  undertake  presently  to  establish  rights  of  aliens  in 
connection  with  entrance  into  and  residence  in  the  United 
States.  Such  provisions  do  not  necessarily  require  auxil- 
iary legislation  for  their  enforcement;  in  the  absence  of 
conflicting  legislation,  they  become  binding  on  the  courts 
in  their  quality  as  primary  law  of  the  land.  When,  how- 
ever, alien  rights  are  merely  promised  and  not  presently 
established  by  treaty,  and  it  is  necessary  that  Congressional 
legislation  be  enacted  before  the  treaty  can  be  enforced,  it 
follows  that  Congress  may  practically  abrogate  the  treaty 
by  failure  to  pass  the  enforcement  legislation,  especially  if 
the  instrument  specifies  a  time  limit  within  which  such 
legislation  shall  be  passed.  The  effect  in  such  a  case  is,  to 
all  intents  and  purposes,  the  same  as  the  enactment  by  Con- 
gress of  legislation  conflicting  with  a  self-executing  treaty.^ 
One  of  the  most  conspicuous  examples  of  abrogation  of 
a  treaty  provision  as  law  of  the  land  was  the  annulment  of 
the  Chinese  treaty  of  1868  (known  as  the  Burlingame 
treaty)  and  the  supplementary  treaty  of  1880.  In  1879 
Congress  passed  a  bill  which  placed  restrictions  on  Chinese 
immigration  into  the  United  States  and  instructed  the 
President  to  abrogate  certain  articles  of  the  Burlingame 
treaty  relating  to  that  subject.  President  Hayes  vetoed  the 
measure,  saying:  *^The  authority  of  Congress  to  terminate 
a  treaty  with  a  foreign  power  by  expressing  the  will  of  the 
nation  no  longer  to  adhere  to  it  is  as  free  from  controversy 
under  our  Constitution  as  is  the  further  proposition  that  the 
power  of  making  new  treaties  or  modifying  existing  treaties 
is  not  lodged  by  the  Constitution  in  Congress,  but  in  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate, 
as  shown  by  the  concurrence  of  two-thirds  of  that  body.  .  .  . 

*Such  practical  abrogation  through  failure  to  pass  enforcement  legislation 
occurred  in  the  case  of  the  Mexican  reciprocity  treaty  of  1883.  Congress  might 
practically  nullify  a  treaty  providing  for  an  international  commission,  such  as 
a  boundary  commission,  by  f aUing  to  appropriate  funds  to  pay  the  salaries  and 
expenses  of  our  commissioners. 


THE  TERMINATION  OF  TREATIES  247 

As  the  power  of  modifying  an  existing  treaty,  whether  by- 
adding  or  striking  out  provisions,  is  a  part  of  the  treaty- 
maJking  power  under  the  Constitution,  its  exercise  is  not 
competent  for  Congress,  nor  would  the  assent  of  China  to 
this  partial  abrogation  of  the  treaty  make  the  action  of  Con- 
gress in  thus  procuring  an  amendment  of  a  treaty  a  com- 
petent exercise  of  authority  under  the  Constitution. '  '^ 

In  the  following  year  a  supplementary  treaty  with  China 
authorized  the  United  States  to  regulate,  limit,  or  suspend 
the  coming  of  Chinese  laborers  into  the  country,  or  their 
residence  therein,  but  not  absolutely  to  prohibit  such  immi- 
gration and  residence.^  In  1888,  however.  Congress  passed 
an  act  making  it  unlawful  for  any  Chinese  laborers  who  had 
once  lived  in  this  country  and  had  departed  from  it  to  return 
to  it  or  remain  in  it.^  The  Supreme  Court  held  that  this 
act  was  in  contravention  of  express  stipulations  of  the 
treaties  of  1868  and  1880,  but  said:  ^^It  is  not  on  that  ac- 
count invalid  or  to  be  restricted  in  its  enforcement.  The 
treaties  were  of  no  greater  legal  obligation  than  the  act  of 
Congress.  ...  A  treaty  is  in  its  nature  a  contract  between 
nations,  and  is  often  merely  promissory  in  its  character, 
requiring  legislation  to  carry  its  stipulations  into  effect. 
Such  legislation  will  be  open  to  future  repeal  or  amendment. 
If  the  treaty  operates  by  its  own  force,  and  relates  to  a\ 
subject  within  the  power  of  Congress,  it  can  be  deemed  in 
that  particular  only  the  equivalent  of  a  legislative  act,  to 
be  repealed  or  modified  at  the  pleasure  of  Congress.  In 
either  case  the  last  expression  of  the  sovereign  will  must 
control. ' '  *  The  invalidation  of  a  prior  treaty  by  an  act  of 
Congress  may  give  a  foreign  government  a  just  ground  of 
complaint.  But  such  complaint,  the  court  said,  **must  be 
made  to  the  political  department  of  our  Government,  which 

*  Richardson,  op.  cit.,  VII,  518-9.  Cf.  the  veto  by  President  Arthur  of  the 
bill  of  1882,  which  he  termed  a  breach  of  our  international  faith,  because  in 
violation  of  the  treaty  of  1880.    Hid.,  VIII,  112. 

'Malloy,  op.  cit.,  238. 
»  25  Stat,  at  L.,  504. 

*  Chae  Chan  Ping  v.  U.  S.,  130  U.  S.,  581. 


248  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

is  alone  competent  to  act  upon  the  subject.  .  .  .  The  ques- 
tion whether  our  Government  is  justified  in  disregarding  its 
engagements  with  another  nation  is  not  one  for  the  deter- 
mination of  the  courts. ' '  ^ 


TERMINATION    THROUGH    LEGISLATIVE    IMPLICATION 

The  termination  of  a  treaty  may  be  brought  about  in- 
^directly  by  an  act  of  Congress,  not  through  a  conflict  be- 
tween such  act  and  express  stipulations  of  the  treaty,  as  in 
the  Chinese  exclusion  case,  but  through  a  general  inconsist- 
ency between  the  two  instruments.  Thus  the  act  of  Con- 
gress admitting  Wyoming  as  a  state  was  held  by  the  Su- 
preme Court  to  supersede,  by  necessary  implication,  a 
treaty  with  the  Bannock  Indians  giving  them  certain  hunt- 
ing privileges  in  territory  included  in  the  new  state. ^  The 
doctrine  of  abrogation  by  implication,  however,  is  not  held 
in  much  favor,  and  the  intention  to  abrogate  must  plainly 
appear.^ 

It  must  be  remembered,  of  course,  that  conflicting  acts  of 
Congress  terminate  a  treaty  merely  as  law  of  the  land  and 
have  no  effect  upon  its  international  validity.  It  must  also 
be  borne  in  mind  that  an  infraction  of  a  treaty  does  not 
necessarily  constitute  a  termination  of  it,  although  an  ad- 
verse breach  may  give  the  other  contracting  party  just 
ground  for  considering  the  treaty  at  an  end.    As  the  Su- 

*  Chae  Chan  Ping  v.  U.  S.,  130  U.  S.,  581.  In  order  to  bring  treaty  stipula- 
tions more  nearly  in  harmony  with  the  law  of  the  land,  a  treaty  was  concluded 
in  1894  which  prohibited,  with  certain  conditional  exceptions,  the  coming  of 
Chinese  laborers  to  the  United  States  for  a  period  of  ten  years.  Malloy,  op.  cit., 
242.  Cf.  an  opinion  that  the  denouncement  of  the  treaty  of  1894  opens  the 
United  States  to  unrestricted  Chinese  immigration  (Sen.  doc.  242,  58th  Cong., 
2d  sess.) ;  and  see  **  Treaty,  Laws  and  Rules  Governing  the  Admission  of 
Chinese'''  (Bureau  of  Immigration,  Dept.  of  Labor,  1914);  also  Sen.  Exec, 
doc.  54,  52d  Cong.,  2d  sess.,  and  "Exclusion  of  Chinese  Laborers,"  Sen.  doc. 
162,  57th  Cong,,  1st  sess.;  also  Sen.  doc.  449,  59th  Cong.,  1st  sess.;  House 
doc.  847,  59th  Cong.,  1st  sess.;  House  rept.  1231,  57th  Cong.,  l^t  sess. 

'  Ward  V.  Race  Horse,  163  U.  S.,  504,  cited  in  Butler,  Treaty  Making  Power, 
II,  132-5. 

•  In  re  Chin  A.  On,  18  Fed.,  506,  cited  in  Moore,  Digest  of  Intemat,  Law,  V, 
359. 


THE  TERMINATION  OF  TREATIES  249 

preme  Court  said  in  the  Charlton  extradition  case,  a  treaty 
is  not  abrogated  by  a  violation  of  it  by  one  of  the  parties, 
unless  the  political  authorities  of  the  other  party  choose 
to  regard  it  as  no  longer  in  force.^  In  other  words,  the 
treaty  is  not  void,  but  voidable.  In  passing  acts  which  may 
be  found  to  run  counter  to  treaty  provisions.  Congress  some- 
times endeavors  to  fend  off  the  charge  of  international  bad 
faith  by  specifically  stipulating  that  such  treaty  provisions 
shall  not  be  considered  as  thereby  terminated.  Thus  in  the 
tariff  act  of  1913  Congress  undertook  to  allow  a  five  per  cent 
discount  to  merchandise  imported  in  American  vessels,  but 
with  the  proviso  that  **  nothing  in  this  subsection  shall  be 
so  construed  as  to  abrogate  or  in  any  manner  impair  or 
affect  the  provisions  of  any  treaty  concluded  between  the 
United  States  and  any  foreign  nation. ' '  ^  The  Supreme 
Court  held  that  the  discount  thus  allowed  would  be  inopera- 
tive as  long  as  existing  reciprocity  treaties  with  foreign 
countries  should  remain  in  force.^ 


TERMINATION    OF    TREATIES    TO    WHICH    THE 
UNITED   STATES   IS    NOT   A   PARTY 

We  have  been  considering  hitherto  the  termination  of 
treaties  to  which  the  United  States  is  a  contracting  party. 
When,  however,  one  of  the  parties  to  a  treaty  is  absorbed  hy 
the  United  States,  treaties  to  which  the  United  States  is  nol 
itself  a  party  may  be  terminated  through  the  action  of  oui 
Government.  Thus  when  the  Hawaiian  Islands  ceased  to 
exist  as  an  independent  state  through  annexation  to  the 
United  States,  the  treaties  to  which  the  Islands  were  a 
party,  whether  made  with  the  United  States  or  with  other 
nations,  were  terminated.  The  joint  resolution  of  Congress 
providing  for  the  annexation  of  the  Islands  declared  that 
'*the  existing  treaties  of  the  Hawaiian  Islands  with  foreign 

>  229  U.  S.,  447. 

*  38  Stat,  at  L.,  196,  chap.  16,  sect.  IV,  J.,  subsect.  7. 

•  United  States  v.  Pulaski  Co.,  243  U.  S.,  97. 


250  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

nations  shall  forthwith  cease  and  determine,  being  replaced 
by  such  treaties  as  may  exist,  or  as  may  be  hereafter  con- 
cluded, between  the  United  States  and  such  foreign  na^ 
tions."  ^  Likewise,  the  treaties  of  Texas  with  foreign  na- 
tions were,  upon  the  annexation  of  that  republic  to  the 
United  States,  terminated,  in  so  far  as  they  were  inconsis- 
tent with  the  public  law  of  this  country.^  The  acquisition  of 
the  Sulu  Islands  in  1898  also  brought  to  an  end  certain 
treaties  in  which  Spain  had  granted  to  European  powers 
commercial  privileges  in  the  archipelago.^ 

CONCLUSIONS 

In  view  of  the  foregoing  facts  and  considerations,  it  will 
be  perceived  that  the  question  as  to  what  organ  of  the 
Government  is  competent  to  terminate  a  treaty  is  not  sus- 
ceptible of  a  definite  answer  until  the  nature  of  the  partic- 
ular treaty  and  the  surrounding  circumstances  are  con- 
sidered. It  is  necessary  to  distinguish  between  treaties 
which  provide  for  their  own  termination  and  those  that  do 
not,  and  between  treaties  in  their  character  as  law  of  the 
land  and  in  that  as  international  compact.  Some  treaties 
are  self-executing  without  further  legislation,  while  others 
require  auxiliary  legislation  before  they  can  be  enforced  by 
the  courts  as  law  of  the  land.  Some,  such  as  treaties  of 
alliance,  contemplate  governmental  action  by  the  political 
departments  and  are  not  susceptible  of  enforcement  by  the 
courts.  These  are  some  of  the  facts  which  must  be  con- 
sidered in  any  answer  to  the  question  of  what  organ  of  the 
Government  is  competent  to  terminate  treaties  to  which  the 
United  States  is  a  party. 

It  has  been  declared  that  **all  in  all,  it  appears  that 
legislative  precedent,  which  moreover  is  generally  sup- 
ported by  the  attitude  of  the  Executive,  sanctions  the  prop- 

*  30  Stat,  at  L.,  750 ;  Moore,  Digest  of  Internat.  Law,  V,  350. 

"Crandall,  op.  cit.,  433-4. 

"C.  E.  Magoon,  Reports  on  the  Law  of  Civil  Government,  etc.,  302,  316. 


THE  TERMINATION  OP  TREATIES  251 

osition  that  the  power  of  terminating  the  international 
compacts  to  which  the  United  States  is  party  belongs,  as  a 
prerogative  of  sovereignty,  to  Congress  alone. '*^  It  can- 
not be  maintained,  however,  that  law  and  practice  bear  out 
such  a  sweeping  statement.  Some  treaties  may  be  more 
appropriately  terminated  by  the  President  than  by  Con- 
gress, and  vice  versa;  some  may  be  terminated  with  equal 
effectiveness  by  the  action  of  the  President,  or  of  the  treaty- 
making  body,  or  of  Congress.  Sometimes  more  than  one 
method  may  with  propriety  be  pursued  in  accomplishing/ 
the  same  object;  although  usually  one  method  is  more  ap-l 
propriate,  that  is,  more  in  accordance  with  law  and  practice^ 
than  the  others.  j 

Without  question,  a  mere  executive  agreement,  which  i 
not  a  full-fledged  treaty,  may  be  terminated,  in  so  far  a 
it  is  susceptible  of  termination  at  all,  by  the  President  alonei 
without  the  concurrence  or  approval  of  any  other  branch  or 
organ  of  the  Government.  This  is  especially  obvious  in 
cases  where  no  legislative  act  or  treaty  provision  has  au- 
thorized the  making  of  the  agreement,  and  no  enforcement 
legislation  has  been  passed. 

Any  full-fledged  treaty  may,  of  course,  be  superseded 
through  a  new  exercise  of  the  treaty-making  power  of  the 
President  and  the  Senate,  joined  with  the  consent  of  the 
opposite  contracting  party.  Where  a  treaty  provides  for 
its  own  termination  upon  the  giving  of  notice,  such  consent 
is  given  in  advance  for  its  termination  upon  a  given  contin- 
gency and  without  reopening  negotiations.  A  treaty  is 
created  by  the  will  of  the  treaty-making  power,  and  if  it 
contains  a  reservation  by  which  that  will  may  be  revoked 
or  its  exercise  be  made  to  cease  on  a  stipulated  notice,  it 
follows  that  the  revocation  is  incident  to  the  will,  and  that 
the  treaty  may  be  terminated  by  the  President  and  the 
Senate.2    But  the  further  question  arises  whether,  under 

*Corwin,  The  President's  Control  of  Foreign  Belations,  115. 
'  Cf .  Reports  of  the  Senate  Committee  on  Foreign  Relations  (Sen.  doc.  231, 
56th  Cong.,  2d  sess.,  VIII,  111). 


252  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

these  circumstances,  the  President  may  give  notice  of  ter- 
mination without  the  concurrence  of  either  the  Senate  or 
Congress.  As  is  pointed  out  in  a  previous  chapter,  the 
President  may  be  considered  the  final  authority  in  treaty- 
making,  since,  even  after  the  Senate  has  given  its  advice 
and  consent  to  the  ratification  of  a  proposed  treaty,  he — 
through  his  power  of  ratifying  the  instrument  and  exchang- 
ing ratifications  or  failing  to  do  so — ^has  the  option  of 
deciding  whether  or  not  the  project  shall  become  a  real 
treaty.  It  has  also  been  showTi  that  the  President,  acting 
on  his  own  authority  or  under  the  authorization  of  the 
treaty-making  body,  may  make  certain  kinds  of  executive 
agreements.  It  may  therefore  be  argued  by  analogy  that 
since  the  Senate  has  already,  in  its  treaty-making  capacity, 
acted  upon  a  treaty  providing  for  its  termination  upon 
notice,  no  further  Senatorial  action  is  necessary  in  effect- 
ing such  termination,  and  that  the  President  alone,  as  the 
mouthpiece  of  the  nation  in  its  international  relations,  may 
denounce  the  treaty  by  giving  notice  of  its  termination. 
This  theory  is  supported  by  the  action  of  the  Executive  dur- 
ing the  Civil  War  in  giving  notice  of  the  termination  of 
the  Eush-Bagot  convention  and  in  withdrawing  such  notice, 
in  both  cases  prior  to  Senatorial  or  Congressional  author- 
ization, and,  more  recently,  by  the  course  of  President  Taft 
in  1911  in  claiming  and  exercising  the  right  to  abrogate,  by 
due  notice,  the  Russian  treaty  prior  to  any  action  by  the 
Sena^^'-^by  the  houses  of  Congress  jointly.  The  theory 
receives  still  stronger  support  from  the  action  of  Secretary 
Hay  in  1899  in  notifying  the  Swiss  Government  of  the  ter- 
mination of  certain  articles  of  the  treaty  of  1850  without 
prior  authorization  or  subsequent  ratification  by  Congress 
or  by  either  branch  thereof. 

It  is  true  that  Congress  assumed  to  '* authorize**  Presi- 
dent Polk  **at  his  discretion*'  to  terminate  by  notice  the 
British  Convention  of  1827  and  that  the  President  had  re- 
quested such  authorization,  and  it  has  been  asserted  that 


THE  TERMINATION  OP  TREATIES  253 

this  **  episode  clearly  supports  the  theory  that  international 
conventions  to  which  the  United  States  is  party  must  be 
terminated  by  act  of  Congress.''^  But  it  just  as  clearly 
does  not  establish  such  a  theory,  for,  as  was  pointed  out 
in  a  report  of  the  Senate  Committee  on  Foreign  Relations 
in  1856,  *'the  assent  of  both  houses  of  Congress  was  cer- 
tainly calculated  to  make  the  act  more  impressive  upon 
England  than  if  authorized  by  the  Senate  alone,  especially 
as  it  was  known  that  on  the  policy  of  giving  the  notice  at 
all  the  Senate  was  by  no  means  united.  .  .  .  Whilst,  there- 
fore, the  committee  are  clear  in  the  opinion  that  the  right 
to  give  the  notice  in  question  pertains  to  the  treaty-making 
power,  they  see  nothing  in  the  fact  that,  in  the  case  with 
England,  the  House  of  Representatives  acted  with  it,  from 
which  it  is  necessarily  to  be  inferred  that  such  union  was 
then  considered  necessary  to  perfect  the  authority.  But  if 
it  were  so  intended,  the  committee  would  not  yield  to  the 
precedent. ' '  ^  Jt  may  also  be  recalled  that  while  President 
Grant  submitted  to  Congress  the  question  of  terminating 
the  extradition  article  of  the  Webster- Ashburton  treaty, 
he  also  claimed  a  concurrent  power  of  considering  the 
article  as  having  lapsed  without  Congressional  action. 

Congress  or  the  Senate  may,  on  its  own  initiative,  take 
prior  action  in  ** authorizing''  the  President  *^at  his  dis- 
cretion'' to  denounce  a  treaty  by  giving  notice  of  its 
termination,  just  as  Congress  or  the  Senate  may  **  author- 
ize" or  request  the  President  to  negotiate  a  treaty,  .or  as 
the  Senate  may  consent  to  the  ratification  of  a  treaty 
already  negotiated.  But  in  all  of  these  cases  the  President 
need  not  heed  the  request  nor  act  on  the  so-called  authority 
granted.  Such  action  on  the  part  of  Congress  or  the  Senate 
has  no  international  validity  until  ratified  by  the  President ; 
so  that,  just  as  the  President  is  the  final  authority  in 
treaty-making,  through  his  power  of  ratifying  a  treaty  and 
exchanging  ratifications,   so  is  he,  in  general,  the'  final 

^Corwin,  op.  cit.,  112. 

'Sen.  doc.  231,  56th  Cong.,  2d  sess.,  VIII,  111-112. 


254  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

authority  in  the  matter  of  denouncing  a  treaty,  through  his 
option  of  giving  or  withholding  notice  of  termination  and 
of  withdrawing  such  notice  within  the  time  limit  when 
given.  As  a  matter  of  comity,  however,  and  in  the  interest 
of  harmonious  relations  between  the  political  departments 
of  the  Government,  he  undoubtedly  will,  in  most  cases,  en- 
deavor to  secure  the  formal  approval  of  his  action  by 
Congress,  or  at  least  by  the  Senate.  '^Though  the  Senate 
participates  in  the  ratification  of  treaties,"  says  a  leading 
writer  on  the  constitutional  law  of  the  United  States,  *'the 
President  has  the  authority,  without  asking  for  Senatorial 
advice  and  consent,  to  denounce  an  existing  treaty  and  to 
declare  it  no  longer  binding  upon  the  United  States.  In 
important  cases,  however,  he  would  undoubtedly  seek  Sena- 
torial approval  before  taking  action. ' '  ^ 
j  When  a  treaty  provides  that  it  may  be  terminated  upon 
I  notice,  and  the  President  gives  such  notice  without  author- 
1  ization  by  Congress  or  the  Senate,  the  foreign  government 
has  no  right  to  inquire  into  the  authority  of  the  President 
to  give  such  notice,  but  must  assume  that  he  is  acting  with- 
in his  constitutional  powers,  and  must,  therefore,  consider 
the  treaty  as  having  been  terminated  as  an  international 
contract  through  such  Presidential  notice.  But  the  validity 
of  a  treaty  as  law  of  the  land  is  dependent  upon  its  binding 
force  as  an  international  compact.  In  other  words,  a  treaty 
may  be  a  binding  international  contract  without  being  law 
jpf  the  land,  as,  for  example,  where  Congress  has  acted 
io  set  it  aside  as  such ;  but  it  cannot  be  law  of  the  land  when 
it  has  ceased  to  be  a  binding  international  compact.  There- 
fore the  act  of  the  President  in  giving  notice  of  a  treaty 's 
termination  brings  it  to  an  end  in  both  qualities  or  aspects. 
Although  the  President  can  be  legally  compelled  by  Con- 
gress to  consider  a  treaty  as  having  been  abrogated  in  its 
character  as  law  of  the  land,  and  can  be  practically  forced 
by  that  body  to  denounce  it  to  foreign  governments,  he 

*Willoughby,  Constitutional  Law  of  the  V.  8.,  I,  518. 


THE  TERMINATION  OF  TREATIES  255 

cannot  be  legally  compelled  so  to  denounce  it;  while,  on 
the  other  hand,  he  may  freely  denounce  it  if  he  wishes,  and 
may  thereby  terminate  it  both  internationally  and  munici- 
pally without  the  consent  or  approval  either  of  Congress 
or  of  the  Senate. 

When  a  treaty  lapses  through  self-limitation,  or  when 
it  is  susceptible  of  termination  upon  notice  and  the  Presi- 
dent transmits  such  notice.  Congressional  legislation  passed 
for  its  enforcement,  in  so  far  as  it  is  purely  ancillary  there- 
to, also  lapses.  In  some  cases,  as  was  pointed  out  in  a 
previous  chapter.  Congress  may  enact  legislation  for  the 
enforcement  of  a  treaty,  which,  in  the  absence  of  such 
treaty,  would  lie  outside  the  range  of  its  constitutional 
power.  The  operation  of  such  legislation  would,  a  fortiori, 
be  suspended  through  the  denunciation  of  the  treaty  by  the 
♦President.  The  President,  then,  by  due  notice  given  as 
provided  in  the  instrument  itself,  may  terminate  a  treaty 
in  its  character  of  international  compact  and  also  in  that 
of  law  of  the  land,  not  only  when  the  treaty  is  self-executing 
and  requires  merely  judicial  and  executive  action  for  its 
enforcement,  but  also  when  legislation  has  been  enacted 
for  that  purpose.  Although  he  cannot,  by  giving  such 
notice  of  termination,  formally  repeal  valid  enforcement 
legislation  of  Congress,  he  may  render  it  entirely  inopera- 
tive. 

Without  regard  to  whether  a  treaty  provides  for  its  own 
termination  on  notice,  the  President  has  power  to  consider 
it  as  having  lapsed  through  adverse  breach  or  other  suf- 
ficient cause  occurring  outside  the  jurisdiction  of  the 
United  States,  and  the  courts  regard  themselves  as  bound 
by  the  Executive's  determination  of  this  matter. 

When  a  treaty  makes  no  provision  for  its  own  termina- 
tion, the  only  method,  in  general,  of  bringing  it  to  an  end, 
both  as  an  international  compact  and  as  law  of  the  land,  is 
a  new  exercise  of  the  treaty-making  power.  In  its  quality 
as  law  of  the  land  merely,  however,  a  treaty,  whether  pro- 


256  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

viding  for  its  own  termination  or  not,  may  undoubtedly  be 
terminated  (1)  by  act  of  Congress,  either  expressly  abro- 
gating it  or  passing  legislation  conflicting  with  it,  or,  (2) 
to  all  intents  and  purposes,  by  failure  to  enact  legislation 
if  any  is  needed  for  its  enforcement.  Finally,  an  act  of 
Congress  may  terminate  a  treaty,  both  in  its  character  of 
international  compact  and  also  in  that  of  law  of  the  land, 
in  cases  in  which  the  Constitution  confers  on  the  two  houses 
power  to  pass  an  act,  such  as  one  declaring  war  against  a 
foreign  nation,  which  is  recognized  in  international  law 
as  having  the  effect  of  terminating  certain  kinds  of  treaties. 

REFERENCES 

Bigelow,  J.,  Breaches  of  Anglo-American  Treaties  (New  York,  1917). 

Butler,  C.  H.,  Treaty-Making  Power  (New  York,  1902),  II,  129-138. 

Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 
1917),  109-116. 

Crandall,  S.  B.,  Treaty-Making  and  Enforcement  (2d  edition,  Washing- 
ton, 1916),  Chap.  XXV. 

Devlin,  R.  T.,  Treaty  Power  (San  Francisco,  1908),  Sects.  95-99;  Chap. 
VIII. 

Foster,  J.  W.,  The  Practice  of  Diplomacy  (Boston,  1906),  Chap.  XV. 

Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  V,  319-387. 

Willoughby,  W.  W.,  Constitutional  Law  of  the  United  States  (New  York, 
1910),  Sects.  207,  220,  221,  223. 


CHAPTER  XIV 

NEUTRALITY  AND  THE  MAINTENANCE  OF  PEACE 

THE  power  of  the  President  in  connection  with  the  be- 
ginning of  war  may  be  exercised  either  negatively  or 
positively.  By  his  negative  power  is  meant  the  power  to 
refrain  from,  or  to  keep  the  country  out  of,  war.  It  may 
be  as  important,  on  occasion,  as  the  power  to  bring  on  a 
war,  although  it  has  been  given  much  less  consideration. 
Congress  has  never  declared  war  except  in  pursuance  of 
at  least  a  virtual  recommendation  of  the  President;  and 
for  practical  purposes  it  may  be  assumed  that  although  it 
has  the  legal  power  to  declare  war,  quite  independently,  it 
will  never  actually  take  such  a  step  without  the  President's 
approval.^  The  President's  power  of  keeping  the  country 
out  of  war  may  be  exercised  in  two  classes  of  cases :  first, 
where  a  situation  exists  in  our  relations  with  another  coun- 
try which  might  serve  as  a  casus  belli  for  the  United  States, 
but  that  country  is  not  yet  engaged  in  war,  either  with  the 
United  States  or  with  any  other  power ;  and,  second,  where 
a  war  is  in  progress  between  other  nations,  and  the  United 
States  refrains  from  entering  the  war  on  either  side.  The 
latter  case  is  known  as  the  policy  or  condition  of  neutrality. 
Numerous  instances  have  occurred  in  the  history  of  our 
foreign  relations  in  which  the  President,  by  a  choice  of 
diplomatic  policies,  has  succeeded  in  keeping  the  country 
out  of  war.  Under  the  Constitution,  the  power  to  change 
our  relations  with  another  country  from  those  of  peace  to 
those  of  war  is  entrusted  to  Congress.    But,  as  has  been 

*  Even  if  this  were  not  so,  the  President,  in  case  an  emergency  arose  during 
the  recess  of  Congress,  could,  of  course,  postpone  a  formal  declaration  of  war 
by  failing  to  call  a  special  session  of  that  body. 

257 


( 


258  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

stated,  that  body  has  never  exercised  the  power  except  upon 
virtual  recommendation  of  the  President.  On  account  of 
his  control  over  the  means  and  avenues  of  diplomatic  inter- 
course, and  his  more  intimate  touch  with  the  foreign  rela- 
tions of  the  United  States,  the  President  is  usually  in  a 
better  position  than  Congress  to  determine,  in  the  first 
instance  at  least,  whether  a  policy  of  peace  or  of  war  should 
be  pursued.  Congress  may,  of  course,  legally  refuse  to  de- 
clare war  when  such  action  is  recommended  by  the  Presi- 
dent, but  it  has  never  actually  done  so.  On  the  other  hand, 
the  President  may,  through  the  exercise  of  his  diplomatic 
powers,  bring  on  a  situation  such  that  Congress  would  be 
practically  compelled  to  declare  war,  whereas,  by  choosing 
the  opposite  path,  he  may  keep  the  country  out  of  war. 
Thus  at  the  time  of  the  Trent  Affair  in  1861  an  unconcilia- 
tory  attitude  on  the  part  of  President  Lincoln  and  Secre- 
tary Seward,  or  their  refusal  to  release  the  Confederate 
commissioners,  might  easily  have  led  to  war  with  Great 
Britain.  Again,  during  President  Grant's  administration, 
public  opinion,  both  in  Congress  and  in  the  country,  was 
so  inflamed  against  Great  Britain,  on  account  of  her  recog- 
nition of  the  belligerency  of  the  Confederacy,  her  failure  to 
prevent  the  Alabama  and  other  Confederate  ships  from 
leaving  her  ports,  and  other  grievances,  that  war  might 
easily  have  been  brought  on,  had  not  Grant  and  his  Secre- 
tary of  State,  Hamilton  Fish,  endeavored  to  effect  a  settle- 
ment of  the  difficulties  by  diplomacy  and  arbitration. 
These  efforts  were  successful  and  the  differences  between 
the  two  countries  were  settled  by  the  award  of  the  Alabama 
Claims  Arbitration  Tribunal  at  Geneva,  constituted  under 
the  Treaty  of  Washington  of  1871.^ 

Again,  although  President  Wilson  was,  on  different  occa- 
sions, authorized  by  Congress  to  use  force  against  Mexico, 
he  persistently   and   successfully  pursued   the   policy   of 
;  avoiding  a  formal  or  full-fledged  war  with  that  country. 

*  Malloy,  Treaties,  etc.,  I,  701. 


NEUTRALITY  AND  THE  MAINTENANCE  OP  PEACE  259 

In  this  connection  it  should  also  be  mentioned  that,  although 
there  was  considerable  sentiment  in  Congress  in  favor  of 
a  declaration  of  war  against  Turkey  and  Bulgaria  at  the 
time  of  our  declaration  against  Austria-Hungary,  war  was, 
as  a  matter  of  fact,  never  declared  against  these  states,  for 
the  reason  that  the  President  did  not  recommend  it.  The 
explanation  which  he  gave  was  that,  although  these  states 
were  tools  of  Germany,  they  *Mo  not  yet  stand  in  the  direct 
path  of  our  necessary  action.'*  Formal  war  was  also 
avoided  against  France  in  1798  through  the  failure  of  Presi- 
dent Adams  to  recommend  it,^  and  President  Jefferson 
maintained  peace  in  1807  with  Great  Britain,  despite  strong 
provocation,  by  not  calling  a  special  session  of  Congress 
while  excitement  was  at  its  height.  The  President  cannot 
usually  afford  to  recede  from  the  maintenance  of  our 
national  rights  in  the  face  of  opposition.  Yet,  through  the 
exercise  of  skilful  diplomacy,  he  may  escape  gracefully 
from  a  difficult  situation  without  seeming  to  sacrifice  our 
national  honor  and  dignity. 

Congress  also,  by  declining  to  pass  legislative  measures^ 
in  support  of  the  bellicose  attitude  of  the  President,  may/ 
assist  in  keeping  the  country  out  of  war.  The  failure  of 
France  to  settle  the  spoliation  claims  according  to  her 
agreement  in  the  treaty  of  1831  led  President  Jackson,  in 
1835,  to  recommend  that  Congress  grant  him  authority  to 
seek  redress  through  reprisals.  The  House  of  Eepresenta- 
tives  declared  by  resolution  that  preparations  should  be 
made  to  meet  the  emergency  and  that  the  execution  of  the 
treaty  should  be  insisted  upon.  But  the  Senate  was  less 
wrought  up ;  and  when  Clay,  from  the  committee  on  foreign 
relations,  submitted  a  report  opposing  the  grant  that  was 
asked,  on  the  ground  that  reprisals  would  inevitably  lead 

*  There  was  also  considerable  sentiment  in  Congress  against  war  with  France 
and  a  resolution  was  introduced  providing  that  "under  existing  circumstances, 
it  is  not  expedient  for  the  United  States  to  resort  to  war  against  the  French 
Bepublic."  The  resolution,  however,  failed  to  pass.  See  Animls  of  Congress, 
5th  Cong.,  cols.  1319-20. 


m, 


260  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

to  war,  a  resolution  was  adopted  to  the  effect  that  it  was 
inexpedient  at  that  time  to  pass  any  legislative  measures 
regarding  the  relations  between  the  two  countries.  This 
attitude  of  the  Senate  was  probably  largely  instrumental  in 
preventing  the  outbreak  of  hostilities.^ 

The  President's  sense  of  responsibility  is  doubtless 
greater,  and  it  is  usually  he,  rather  than  Congress  or  either 
branch  thereof,  that  adopts  the  more  conciliatory  policy  in 
time  of  difficulty  with  a  foreign  nation.  To  this  rule  there 
have,  of  course,  been  exceptions.  The  case  of  Jackson  and 
the  French  treaty  mentioned  above  is  one  of  them ;  another 
is  the  Venezuela  controversy  with  Great  Britain  during 
President  Cleveland's  administration,  when  the  extreme 
position  taken  by  the  President  and  Mr.  Olney,  his  secre- 
tary of  state,  might  easily  have  led  to  war,  had  the  British 
government  adopted  an  equally  firm  attitude.^  It  must,  of 
course,  be  remembered  that,  even  though  the  President  is 
extremely  desirous  of  maintaining  peace,  and  although  he 
adopts  every  measure  to  that  end  consistent  with  our 
national  honor  and  dignity,  he  will  not  always  be  able  to 
prevent  war,  since  war  may  be  thrust  upon  us  by  a  foreign 
nation  against  our  will.  Again,  he  may  be  unable  to  stem 
the  tide  of  warlike  excitement  in  Congress  and  among  the 
people,  fomented  by  the  acts  of  the  foreign  nation,  as  in 
the  cases  of  the  war  of  1812  and  the  Spanish- American  war. 

ABBITRATIOK 

The  policy  of  attempting  to  reach  a  settlement  of  inter- 
national disagreements  by  arbitration  when  diplomacy  fails 
is  one  to  which  the  Government  of  the  United  States  has 
almost  uniformly  adhered.  In  1874  a  resolution  favoring 
general  arbitration  was  passed  by  the  House  of  Representa- 
tives, and  in  1890  a  concurrent  resolution  was  passed  by 

*  Moore,  Digest  of  Intemat.  Law,  VII,  123-7. 

'It  is  true  that  in  this  case  Congress,  which  had  been  generally  hostile  to 
the  President,  supported  him. 


NEUTRALITY  AND  THE  MAINTENANCE  OP  PEACE  ^61 

both  the  House  and  the  Senate  requesting  the  President  to 
invite  negotiations  with  other  governments  looking  toward 
the  settlement  of  disputes  by  international  arbitration.^  A 
farther  instance  of  Congressional  sanction  of  this  pro- 
cedure is  a  paragraph  of  the  naval  appropriation  act  of 
1916  in  which  Congress  declared  it  to  be  *  *  the  policy  of  the 
United  States  to  adjust  and  settle  its  international  disputes 
through  mediation  or  arbitration,  to  the  end  that  war  may 
be  honorably  avoided,'*  and  ** authorized  and  requested*' 
the  President  to  call  an  international  conference  to  con- 
sider arbitration  and  disarmament.^ 

On  the  whole,  however,  the  President,  as  the  officer 
charged  with  direct  responsibility  for  our  foreign  inter- 
course, has  been  more  interested  in  arbitration  than  has 
Congress.  Although,  as  noted  above.  President  Cleveland 
adopted  a  firm,  and  rather  extreme,  attitude  in  the  Venezue- 
lan controversy  with  Great  Britain,  he  was  at  the  very 
moment  insisting  upon  arbitration  of  the  boundary  dispute ; 
and  by  his  insistence  he  succeeded  in  having  the  matter 
settled  in  that  way.  Already,  in  1893,  he  had  laid  before 
Congress  a  resolution  favoring  international  arbitration, 
and  had  expressed  his  *  *  sincere  gratification  that  the  senti- 
ment of  two  great  and  kindred  nations  is  thus  authorita- 
tively manifested  in  favor  of  the  rational  and  peaceable 
settlement  of  international  quarrels  by  honorable  resort  to 
arbitration.*' 2  In  his  inaugural  address  President  Mc- 
Kinley  declared  that  arbitration  *'is  the  true  method  of 
settlement  of  international  as  well  as  local  or  individual 
differences. "  *  In  this  connection,  however,  it  should  be 
noted  that,  to  the  proposal  of  Spain  that  all  differences 

*  Cf .  Richardson,  Mess,  and  Pap,  of  the  Presidents,  IX,  442. 

•  39  U.  S.,  Stat,  at  L.,  618. 

•  Richardson,  op.  cit.,  IX,  442. 

*  This  opinion  was  expressed  by  the  President  in  connection  with  his  request 
for  the  Senate's  approval  of  the  British  arbitration  treaty  of  1897.  Approval 
was  not  given. 


262  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

arising  from  the  destruction  of  the  battleship  Maine  should 
be  submitted  to  arbitration,  McKinley  made  no  reply.^ 

The  treaty-making  power  has  attempted  to  control  the 
war  power  both  positively  and  negatively.  By  negative 
control,  in  this  connection,  is  meant  the  attempt  by  the 
treaty  power  to  maintain  peace  by  preventing  the  war- 
declaring  power  from  being  exercised.  Numerous  treaties 
have  been  entered  into  by  the  United  States,  beginning  with 
the  Jay  Treaty  in  1794,  providing  for  the  arbitration  of 
particular  disputes,  which,  if  otherwise  unsettled,  might 
have  led  to  war.  We  have  also  entered  into  a  number  of 
general  arbitration  treaties.  Thus  the  United  States  was 
a  party  to  the  Hague  conventions  of  1899  and  1907  provid- 
ing for  the  peaceful  settlement  of  international  disputes  by 
mediation,  by  international  commissions  of  inquiry,  and 
through  the  establishment  of  a  so-called  permanent  court 
of  arbitration  at  the  Hague.  In  1911  two  agreements  were 
negotiated  with  Great  Britain  and  France  providing  for 
general  arbitration;  although  on  account  of  Senate  amend- 
ments which  the  President  was  unwilling  to  accept  they 
were  abandoned.  The  action  of  the  Senate  in  this  case 
would  seem  to  indicate  that,  although  that  body  was  not 
opposed  to  the  general  policy  of  international  arbitration, 
it  was  less  interested  in  the  promotion  of  that  policy  than 
in  the  preservation  of  its  constitutional  functions,  as  it 
conceived  them,  in  the  exercise  of  the  treaty-making  power.^ 

On  several  occasions  the  United  States  has  attempted  to 
place  an  indirect  or  partial  limitation,  in  the  international 
sense,  upon  the  war-declaring  power  of  Congress,  by  be- 
coming a  party  to  treaties  providing  for  the  submission, 
by  special  agreement,  of  international  differences,  with 
certain  exceptions,  to  the  permanent  court  of  arbitration 
at  The  Hague.  The  differences  specified  are  those  of  a  legal 
nature  or  relating  to  the  interpretation  of  treaties  existing 

*Eichardson,  Mess,  and  Pap.  of  the  Presidents,  X,  148. 

'  Cf .  also  the  reservation  of  the  Senate  to  the  Hague  convention  of  1907  for 
the  settlement  of  international  disputes.    Malloy,  Treaties,  etc.,  II,  2247-8. 


NEUTRALITY  AND  THE  MAINTENANCE  OF  PEACE   263 

between  the  contracting  parties.*  In  a  more  direct  way, 
however,  we  have  attempted  to  limit,  in  an  international 
sense,  the  exercise  by  Congress  of  the  war-declaring  power,, 
by  entering  into  the  so-called  Bryan  peace  treaties,  under 
which  the  United  States  agreed  with  a  number  of  powers 
not  to  go  to  war  with  another  contracting  party  pending 
investigation  of  the  dispute  by  an  international  commis- 
sion.2  These  treaties  may  be  considered  as  forming  a 
precedent  for  Articles  XII  and  XV  of  the  Covenant  of  the 
League  of  Nations,  under  which  the  contracting  parties 
agree  (1)  not  to  resort  to  war  until  three  months  after  an 
arbitrators'  award  has  been  made  or  the  report  of  the 
Council  of  the  League  has  been  submitted,  and  (2)  not  to 
go  to  war  at  all  with  any  party  which  complies  with  the 
recommendations  of  the  CounciPs  report.  Such  treaty  pro- 
visions, however,  merely  place  a  moral  or  political  obliga- 
tion upon  Congress  in  the  international  sense,  and  cannot 
affect  the  constitutional  power  of  that  body  to  declare  war 
at  its  discretion.^ 

NEUTKALITY 

The  President  may  endeavor  to  avoid  war,  not  only 
through  the  negotiation  of  treaties,  but  also  through  his 
diplomatic  and  executive  powers  irrespective  of  any  treaty. 
When  he  does  this  with  a  view  to  avoiding  entrance  by  the 
United  States  into  a  war  already  in  progress  between  other 
nations,  his  policy  is  known  as  that  of  neutrality.  In  the 
case  of  some  important  wars,  e.g,y  the  Franco-Prussian 
war  of  1870  and  the  Eusso-Japanese  war  of  1904,  the  United 
States  declared,  and  succeeded  in  maintaining,  its  neu- 
trality. Once  the  dogs  of  war  among  foreign  nations  are 
loosed,  however,  the  likelihood  that  the  United  States  will 

*  See,  e.g.,  35  U.  S.  Stat,  at  L.,  1994. 
"See,  e.g.,  38  U.  S.  Stat,  at  L.,  1853. 

VCf.  Mathews,  "The  League  of  Nations  and  the  Constitution,'*  Mich.  Law 
Beview,  XVIII,  386  (March,  1920). 


ft 


264  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

be  drawn  into  the  struggle  is  usually  greater  than  in  the 
case  of  an  international  dispute  which  has  not  yet  reached 
the  stage  of  armed  combat.  At  two  stages  in  our  national 
history  the  problem  of  maintaining  our  neutrality  in  the 
face  of  warring  nations  of  Europe  became  extremely  seri- 
ous. The  first  was  the  period  of  the  Revolutionary  and 
Napoleonic  wars  of  1793-1815;  the  second  was  that  of  the 
World  War  of  1914-1919.  In  both  cases  we  at  first 
attempted  to  maintain  complete  neutrality,  which  we  suc- 
ceeded in  doing  for  a  time;  but  in  both  cases,  also,  we 
suffered  infringements  of  our  neutral  rights  from  both 
parties  or  groups  of  parties  to  the  struggle,  and  in  both 
cases  we  were  ultimately  drawn  into  the  conflict.  In  both 
instances  it  was  the  President  who  decided  upon  our  policy 
of  neutrality  and  kept  us  to  it  as  long  as  was  feasible.  When 
he  ceased  to  be  able  to  maintain  the  policy,  his  inability 
arose  not  so  much  from  pressure  on  the  part  of  Congress 
as  from  intolerable  acts  of  aggression  and  infringement  of 
our  neutral  rights  on  the  part  of  some  European  power  or 
group  of  powders. 

Our  entrance  into  the  European  war  was  advocated  by 
some  persons  at  the  time  of  the  German  invasion  of  Belgium 
in  1914,  and  the  same  step  was  urged  by  some  at  the  time 
of  the  sinking  of  the  Lusitania  by  a  German  submarine  in 
the  following  year.  Both  of  these  incidents — certainly  the 
latter — ^might  have  been  considered  a  sufficient  casus  belli 
by  even  a  slightly  beUicose  President.  In  both  instances, 
however,  as  well  as  on  the  occasion  of  the  Sussex  outrage, 
President  Wilson  avoided  war,  and  not  until  it  became 
manifest  to  everybody  that  Germany  had  no  intention  of 
regarding  our  neutral  rights  did  he  finally  decide  to  recog- 
nize the  state  of  war  thus  thrust  upon  us. 

Opposition  arose  in  Congress  in  1916  to  the  policy  of 
the  administration  in  declining  to  warn  American  citizens 
against  traveling  on  the  high  seas  in  defensively  armed 
merchantmen.    Many  members  of  that  body  believed  that 


NEUTRALITY  AND  THE  MAINTENANCE  OF  PEACE    265 

this  policy  would  inevitably  lead  to  war.  The  MoLemore 
resolution,  which  requested  the  President  to  give  such 
warning,  was  tabled  by  a  vote  of  almost  two  to  one.  It 
was,  however,  a  determined  attempt  on  the  part  of  Con- 
gress to  interfere  with  the  complete  control  which  the 
President  exercised  over  the  diplomatic  issues  involved  in 
the  relations  between  the  United  States  and  the  warring 
nations  of  Europe.  The  President  maintained  that  these 
were  matters  for  his  sole  determination;  and  the  defeat 
of  the  resolution  seems  to  have  been,  to  some  extent  at  least, 
a  Congressional  recognition  of  the  correctness  of  his  posi- 
tion. 

In  the  campaign  of  1916  the  country  was  urged  to  reelect 
President  Wilson  because  ^'he  kept  us  out  of  war'';  and 
not  long  afterwards  he  was  being  criticized  on  the  score 
that,  after  being  reelected  partly  on  the  strength  of  that 
slogan,  he  had  *'got  us  into  war.''  Without  passing  upon 
the  merits  of  his  course  at  any  stage,  the  incident  may 
merely  be  cited  as  indicating  that,  in  popular  estimation, 
the  executive  is  the  department  of  the  Government  which 
determines  the  question  of  peace  or  war. 

It  is  customary  for  the  President,  at  the  outbreak  of  a 
war  to  which  the  United  States  is  not  a  party,  to  issue  a 
proclamation  of  neutrality  between  the  belligerents.  This 
was  done  for  the  first  time  by  President  Washington  in 
1793,  upon  the  outbreak  of  war  between  France  and  Great 
Britain.^  The  proclamation  issued  on  this  occasion  is  a 
landmark  in  the  history  both  of  international  law  and  of 
the  governmental  practice  and  policy  of  the  United  States 
toward  European  powers.  It  was  put  forth  by  the  Presi- 
dent after  consultation  with  his  cabinet,  but  without  any 
express  authorization  by  Congress ;  and  inasmuch  as  the 
Constitution  contains  no  provision  expressly  granting  the 
power  either  to  the  President  or  to  Congress,  difference  of 

^Am.  State  Papers,  For.  Bel.,  I,  140.  For  fa/isvniile  reproduction  of  this 
proclamation,  see  Moore,  Principles  of  American  Diploma^,  41. 


266  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

opinion  naturally  arose  as  to  whether  the  President  really 
has  the  power  to  issue  a  proclamation  of  the  sort. 

Debate  on  this  question  was  carried  on  notably  by  Hamil- 
ton, who  assumed  the  pen-name  of  ^'Pacificus,''  and  by 
Madison,  who  wrote  under  the  name  of  **Helvidius.'' ^ 
Madison  argued,  that  the  right  to  judge  whether,  under 
the  existing  treaty  of  alliance  with  France,  the  United 
States  was  obliged  to  declare  war  was  included  within  the 
war-declaring  power,  and  therefore  belonged  to  Congress. 
Moreover,  he  endeavored  to  impale  '  ^  Pacificus ' '  on  the  logi- 
cal horns  of  the  dilemma  that  Congress  is  free  to  exercise, 
at  its  discretion,  its  war-declaring  power  and  is  at  the 
same  time  bound  by  the  Presidential  proclamation  of  neu- 
trality not  to  declare  war. 

The  problem  involved  is  essentially  the  same  as  that 
previously  adverted  to  in  considering  efforts  of  the  treaty 
power  to  control  the  power  of  Congress  to  declare  war 
and  to  appropriate  money.  The  constitutional  discretion  of 
Congress  in  the  exercise  of  the  last-mentioned  powers  must 
remain  unfettered  in  spite  of  any  treaty;  otherwise  the 
Constitution  could  be  amended  through  the  exercise  of  the 
treaty  power.  Likewise,  the  constitutional  power  of  Con- 
gress to  declare  war  remains  legally  unfettered  by  the 
^previous  action  of  the  President  in  issuing  a  proclamation 
of  neutrality,  although  that  officer's  action  in  this  respect 
will  naturally  be  taken  into  consideration  by  Congress  as  a 
factor  in  its  decision  to  declare  war  or  not  to  do  so.  Al- 
though, in  practice,  as  is  indicated  above,  Congress  has 
never  declared  war  except  in  pursuance  of  the  recommenda- 
tion of  the  President,  it  has  the  legal  power  to  do  so 
without  such  recommendation,  and  its  failure  to  do  so,  pro- 
vided it  is  in  session  during  the  progress  of  a  war  between 
foreign  nations,  may  be  taken  as  a  sufficient  indication  of 

*  The  substance  of  the  constitutional  arguments  of  these  two  writers  is  re- 
printed in  Corwin,  The  President's  Control  of  Foreign  Relations,  8-27. 


NEUTRALITY  AND  THE  MAINTENANCE  OP  PEACE   267 

its  intention  that  the  country  shall  remain  neutral.^  The 
action  of  the  President,  therefore,  in  issuing  a  proclama- 
tion of  neutrality  under  such  circumstances  is  merely  an 
official  recognition  and  notification,  to  other  nations  as  well 
as  to  our  own  citizens,  by  that  department  of  our  Govern- 
ment which  is  charged  with  the  conduct  of  foreign  inter- 
course, that  we  espouse  the  cause  of  neither  side  in  the 
conflict,  but  propose  to  remain  at  peace ;  and  the  President's 
act  may  be  considered  as  merely  reinforcing  and  express- 
ing the  implied  attitude  of  Congress,  as  evidenced  by  its 
failure  to  declare  war.  Nothing  is  more  obvious  than  that 
it  is  the  duty  of  the  President,  in  conducting  our  inter- 
national relations,  to  inform  foreign  governments  what  our 
policy  is  in  matters  of  peace  and  war.  A  neutrality  procla- 
mation is  one  of  several  means  of  doing  so. 

At  the  time  of  the  receipt  of  news  in  this  country  in 
April,  1793,  that  war  had  broken  out  between  France  and 
Great  Britain,  Congress  had  adjourned,  and  it  had  not  yet 
reconvened  at  the  time  when  Washington  issued  his  proc- 
lamation. Consequently,  it  had  no  opportunity  to  give  evi- 
dence of  its  attitude  until  the  beginning  of  the  next  session, 
several  months  after  the  proclamation  was  issued.  By 
passing  an  act  or  resolution  declaring  war,  and  by  repass- 
ing it  over  the  President's  veto  if  necessary,  it  might  then 
have  nullified  or  reversed  the  policy  that  had  been  pro- 
claimed. But  it  failed  to  do  this.  Likewise,  the  President, 
in  view  of  changed  conditions,  might  have  abandoned  his 
former  attitude  by  recommending  to  Congress  that  it  de- 
clare war,  as  President  Wilson  did  in  1917  after  issuing  his 
proclamation  of  neutrality  in  1914.  This,  also,  was  not 
done.  Mter  Congress  has  declared  war,  and  while  hostili- 
ties are  in  progress,  the  President  cannot,  by  issuing  a 
proclamation  of  neutrality,  restore  peace.    It  is  then  his 

*0n  this  point  compare  the  debate  on  the  proposed  Congressional  resolution 
of  1798  that  **  under  existing  circumstances,  it  is  not  expedient  for  the  United 
States  to  resort  to  war  against  the  French  Republic."  Annals  of  Congress, 
5th  Cong.,  cols.  1319-1320.    For  discussion  of  this  case,  see  below,  p.  301. 


268  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

constitutional  duty  to  enforce  the  laws  passed  by  Congress 
for  the  prosecution  of  the  war,  including  the  declaration 
of  the  intention  of  our  Government  to  pursue  the  contest 
to  a  successful  termination. 

In  the  discussion  referred  to  above  Hamilton  maintained 
that  ^Hhe  executive  power  of  the  nation  is  vested  in  the 
President ;  subject  only  to  the  exceptions  and  qualifications 
which  are  expressed' ^  in  the  Constitution.  Hence  the  Presi- 
dent had  the  right  to  issue  the  proclamation,  since  the 
general  powers  relating  to  peace  and  war  are  vested  in 
him,  subject  only  to  the  limitation  that  the  power  of  chang- 
ing the  condition  of  the  country  from  one  of  peace  to  one 
of  war  is  expressly  vested  by  the  Constitution  in  Congress. 
This  view  has  been  sanctioned  by  the  practice  of  subse- 
quent Presidents,  is  supported  by  the  analogous  power  of 
the  President  to  remove  from  ofifice,  and  has  received  the 
implied  approval  of  the  Supreme  Court  in  construing  the 
powers  of  the  judicial  department  of  the  Government.^ 

Although  the  President  had  the  power  to  issue  the  proc- 
lamation of  neutrality  in  1793,  there  were  not  adequate  laws 
for  the  strict  enforcement  of  the  policy  upon  our  own  citi- 
zens. Consequently,  on  Washington's  recommendation, 
Congress,  which  is  empowered  by  the  Constitution  to  define 
and  punish  offenses  against  international  law,  passed  penal 
statutes  in  1794,  and  again  in  1797,  1818,  and  at  later  dates, 
steadily  enlarging  the  code  and  extending  the  jurisdiction 
of  the  courts  in  enforcing  the  neutrality  laws.^  Numerous 
cases  have  come  up  in  the  courts  involving  the  interpreta- 
tion and  enforcement  of  these  measures.  It  was  provided, 
furthermore,  that  when  the  violation  of  our  neutrality  laws 
should  be  attempted  on  such  a  scale  that  the  courts  would 
probably  not  be  able  to  enforce  them,  the  President  might 

*  Kansas  v.  Colorado,  206  IT.  S.,  46,  where  it  is  pointed  out  that  the  Con- 
stitution does  not  make  a  general  grant  of  legislative  power  to  Congress,  while, 
on  the  other  hand,  the  entire  judicial  power  of  the  nation,  subject  only  to 
express  limitations,  is  vested  in  the  courts.     Quoted  in  Corwin,  op.  cit.,  31. 

'  For  the  text  of  these  acts,  see  C.  G.  Fenwick,  Neutrality  Laws  of  the  United 
States  (Washington,  1913),  appendix. 


NEUTRALITY  AND  THE  MAINTENANCE  OP  PEACE   269 

employ  the  land  and  naval  forces  of  the  United  States  for 
the  purpose.^  Administrative  action  in  the  enforcement 
of  the  neutrality  laws  may  be  invoked  also  through  the 
power  of  the  United  States  district  attorneys,  under  the 
direction  of  the  President  and  the  Attorney-General,  to 
secure  evidence  and  commence  legal  proceedings  against 
violators,  and  through  the  power  of  the  collectors  of  the 
customs,  acting  under  the  instructions  of  the  Secretary  of 
the  Treasury,  to  detain  vessels  about  to  depart  from  our 
shores  in  violation  of  our  neutrality.^ 

In  view  of  unsettled  conditions  in  Mexico  in  1912  it 
seemed  expedient  to  the  President  to  concentrate  a  number 
of  troops  along  the  border,  so  as  to  prevent  evasion  of  our 
neutrality  laws;  and  in  order  to  assist  in  achieving  this 
purpose,  Congress  passed,  in  that  year,  a  joint  resolution 
empowering  the  President  to  prohibit  the  shipment  of  arms 
or  munitions  of  war  to  any  American  country  where  con- 
ditions of  domestic  violence  exist.^  In  pursuance  of  this 
important  extension  of  his  power,  the  President  has  on 
several  occasions  issued  proclamations  prohibiting  the  ex- 
port of  arms  and  munitions  to  Mexico.  In  1915  Congress 
passed  a  joint  resolution  ^'to  empower  the  President  to 
better  enforce  and  maintain  the  neutrality  of  the  United 
States, ' '  authorizing  him  to  direct  the  collectors  of  customs 
to  detain  vessels  about  to  sail  from  our  ports  in  violation 
of  our  neutral  obligations,  and  to  employ  the  land  or  naval 
forces  to  carry  out  the  purpose  of  the  resolution.* 

It  remains  to  point  out  the  connection  between  the  Presi-  / 
dent's  power  of  recognition  and  his  power  of  issuing  neu-* 
trality  proclamations.    It  is  axiomatic  that  a  state  cannot 
be  neutral  except  as  between  two  other  contending  states 
or  groups  of  states.    It  follows  that,  when  the  President 

*Sect.  9  of  the  act  of  1818.  Cf.  Gelston  v.  Hoyt,  3  Wheat.,  246,  cited  by 
Fenwick,  op.  cit.,  p.  149.  See  also  21  Op.  of  Atty.-Gen.,  267,  273,  quoted  in 
Moore,  Digest  of  Internat.  Law,  VII,  1029. 

'  Sect.  11  of  the  act  of  1818,  Fenwick,  ojp.  cit,  179. 

•  Text  of  resolution  in  Fenwick,  op.  cit.,  158. 

*  38  Stat,  at  L.,  pt.  1,  p.  1226. 


270  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

proclaims  neutrality  between  two  contending  parties,  he 
thereby  indirectly  recognizes  them  as  having  for  the  time 
being  the  status  of  belligerency,  if  not  of  complete  inde- 

'  pendence.  When  he  proclaims  neutrality  between  a  gen- 
erally recognized  state  and  its  revolting  colony  or  depend- 
ency or  a  body  of  insurrectionists  within  its  territory,  his 
action  is  equivalent  to  a  recognition  by  him  of  the  latter 
as,  for  the  time  being,  a  de  facto  government.  Thus  Presi- 
dent McKinley  declared,  in  a  message  to  Congress  on  Cuban 

\  atf airs :  ^  ^  In  the  code  of  nations  there  is  no  such  thing  as 
a  naked  recognition  of  belligerency,  unaccompanied  by  the 
assumption  of  international  neutrality.  .  .  .  The  act  of 
recognition  usually  takes  the  form  of  a  solemn  proclama- 
tion of  neutrality,  which  recites  the  de  facto  condition  of 
belligerency  as  its  motive. ' '  ^  Furthermore,  a  proclama- 
tion issued  by  the  President  declaring  the  existence  of  an 

.  insurrection  within  a  friendly  country  and  warning  Ameri- 
can citizens  that  participation  in  such  disturbances  consti- 
tutes a  violation  of  our  neutrality  laws  has  been  held  by 
the  Supreme  Court  to  be  tantamount  to  a  recognition  of  a 
condition  of  insurgency,  even  though  no  recognition  of 
belligerency  has  taken  place.^  Such  a  proclamation  was 
issued  by  President  Cleveland  in  1895  with  regard  to  the 
Cuban  insurrection. 

The  concept  of  neutrality  has  doubtless  lost  something 
of  its  importance  since  1914.  The  World  War  demon- 
strated the  futility  of  the  attempt  to  maintain  neutrality 
on  the  part  of  a  proud  and  commercially  important  nation 
in  the  face  of  desperate  warfare  conducted  on  a  world- 

*  Eichardson,  Mess,  and  Pap.  of  the  Presidents,  X,  133. 

*  The  Three  Friends,  166  U.  S.,  1.  On  the  difficulties  we  encountered  in  con- 
nection with  the  maintenance  of  our  neutrality  during  the  Cuban  insurrection, 
see  the  responses  of  the  Secretary  of  the  Treasury  to  House  and  Senate  resolu- 
tions requesting  information  regarding  filibustering  expeditions  to  Cuba  and 
measures  adopted  to  thwart  violations  of  our  neutrality  off  the  coast  of  Florida 
(Sen.  doc.  35,  and  House  doc.  326,  both  of  the  55th  Cong.,  2d  sess.).  Cf.  "The 
Law  of  Hostile  Military  Expeditions  as  Applied  by  the  U.  S.,"  Am.  Jour. 
Intemat.  Lcrn,  VIII,  1,  224. 


NEUTRALITY  AND  THE  MAINTENANCE  OF  PEACE    271 

wide  scale.^  In  view  of  this  fact,  the  Covenant  of  the 
League  of  Nations  (Article  XVI)  provides  for  the  auto- 
matic creation  of  a  state  of  war  between  a  peace-breaking 
member  and  all  of  the  remaining  members.  Thus  is  frankly 
recognized  the  inescapable  truth  that  the  members  of  the 
League  cannot  and  should  not  remain  neutral  in  the  face 
of  an  invasion  of  the  peace  of  the  world,  even  though  they 
may  not  be  immediately  or  directly  attacked.^  Despite  the 
decreasing  importance  of  the  concept  of  neutrality,  how- 
ever, the  right  and  the  capacity  of  the  President,  through, 
the  exercise  of  his  diplomatic  and  executive  functions,  to 
maintain  the  peace  and  to  avert  resort  to  arms  must  be, 
in  the  future  as  in  the  past,  of  tremendous  importance  for 
the  welfare  of  the  nation. 


REFERENCES 

Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 

1917),  7-32. 
Fenwick,  C.  G.,  The  Neutrality  Laws  of  the  U.  S.  (Washington,  1913). 
Moore,  J.  B.,  Digest  of  International  Law  (Washington,  1906),  VII,  1002- 

30. 
Moore,  J.  B.,  Principles  of  American  Diplomacy  (New  York,  1918),  Chaps. 

II  and  VIII. 

^R.  F.  Roxburgh,  ** Changes  in  the  Conception  of  Neutrality,''  Journal  of 
Comparative  Legislation^  April,  1919,  p.  23. 

'Mathews,  "League  of  Nations  and  the  Constitution,'*  Michigan  Law  Be- 
vi&iv,  XVIII,  384  (March,  1920). 


CHAPTER  XV 

FORCIBLE  MEASURES  SHORT   OF  WAR 

THE  use  of  the  armed  forces  of  the  United  States  in 
such  a  manner  as  to  derogate  from  the  effective  sov- 
ereignty of  a  foreign  country  has  frequently  taken  place 
without  a  formal  declaration  of  war  by  Congress.  Such 
use  of  armed  forces  may  or  may  not  amount  to  interven- 
tion, in  the  sense  in  which  that  term  is  employed  in  inter- 
national law.  Intervention  may  be  either  political  or  non- 
political.  If,  as  is  usually  the  case  when  the  United  States 
is  involved,  it  is  non-political,  it  partakes  of  the  character 
of  non-belligerent  interposition,^  and  as  such  may  be 
undertaken  with  or  without  the  consent  of  the  government 
of  the  foreign  country  concerned.  In  the  nature  of  the 
operations  involved,  although  usually  not  in  their  extent, 
it  may  differ  but  little  from  war  in  the  material  sense ;  and 
it  may  develop  into  war,  through  the  action  of  either  party 
in  recognizing  it  as  such.  Until  so  recognized,  it  differs 
from  war  in  that  the  juridical  results  of  the  status  of  war 
are  not  produced  as  between  the  parties  involved,  and  in 
that  third  powers  are  not  charged  with  the  duties  of  neu- 
trals under  international  law.  It  does  not  necessarily 
result  in  war  and  may,  indeed,  be  adopted  purposely  as  a 
measure  to  prevent  war.  The  power  of  the  President  to 
sjUse  the  armed  forces  of  the  country  not  only  extends,  as 
we  shall  see,  to  repelling  actual  invasion  of  our  territory 
and  recognizing  the  existence  of  a  state  of  war  through 
foreign  aggression,  but  may  be  exerted  in  and  against 
foreign  countries  or  on  the  high  seas  in  the  protection  of 

*  Cf.  Borchard,  Diplomatic  Protection  of  Citizens  Abroad,  448. 

272 


FORCIBLE  MEASURES  SHORT  OF  WAR  273 

the  rights  and  interests  of  the  Government  and  citizens 
of  the  United  States.  In  this  chapter  we  are  concerned 
with  the  use  of  armed  force  by  our  Government  in  those 
cases  only  in  which  the  actual  resort  to  force  was  neither 
preceded  nor  followed  by  a  formal  declaration  of  war  by 
Congress. 

The  power  of  the  President  as  commander-in-chief  to 
direct,  in  time  of  peace,  the  non-hostile  movements  of  our 
military  forces  on  our  own  territory  and  of  our  naval  forces 
on  the  high  seas  and  into  foreign  ports  and  territorial 
waters  merges  almost  imperceptibly  into  his  power  to 
direct  the  movements  of  those  forces  in  such  a  manner  as 
to  constitute  an  actual  or  potential  exercise  of  physical  ^ 
pressure  against  a  foreign  country.  In  its  preliminary 
stage,  a  non-hostile  movement  may  go  no  farther  than  a 
mere  display  of  force ;  actual  use  of  force  may  or  may  not 
result.  Thus  in  the  early  part  of  the  nineteenth  century 
the  United  States  maintained  a  small  squadron  in  the  Medi- 
terranean Sea  as  an  alternative  to  paying  tribute  to  the 
Barbary  states  for  the  security  of  our  commerce  in  those 
waters.^  Again,  in  1911  President  Taft  directed  the 
mobilization  of  twenty  thousand  American  troops  on  the 
Mexican  border,  in  view  of  the  disturbed  conditions  in  that 
country.^  When,  in  1895,  an  American  warship  was  sent 
to  Turkish  waters.  Secretary  Olney  notified  the  Turkish 
minister  that  '^the  visit  of  the  Marhlehead  to  Turkish 
waters  at  this  junction  is  in  pursuance  of  a  long-established 
usage  of  this  Government  to  send  its  vessels,  in  its  dis- 
cretion, to  the  ports  of  any  country  which  may  for  the  time 
being  suffer  perturbation  of  public  order  and  where  its 
countrymen  are  known  to  possess  interests.  This  course  is 
very  general  with  all  other  governments,  and  the  circum- 
stance that  a  transient  occasion  for  such  visits  may  exist 

*S€e  Moore,  Digest,  VII,  107,  and  other  instances  there  cited, 
^For.  Bels.  of  V.  S.,  1911,  p.  XII. 


274  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

does  not  detract  from  their  essentially  friendly  char- 
acter. '  ^  ^ 

In  going  beyond  a  mere  display  of  force  to  the  actual 
exercise  thereof  the  President  usually  conforms  his  action 
to  the  rules  of  international  law,  which  recognize  the  right 
of  a  nation,  under  certain  circumstances,  to  resort  to 
non-amicable  measures  of  redress  short  of  war,  such  as 
reprisals,  pacific  blockade,  and  other  forms  of  non-bellig- 
erent interposition.  In  the  case  of  the  Paquette  Hahana/^ 
the  Supreme  Court  declared  that  **  international  law  is 
part  of  our  law,  and  must  be  ascertained  and  administered 
by  the  courts  of  justice  of  appropriate  jurisdiction,  as 
often  as  questions  of  right  depending  upon  it  are  duly 
presented  for  their  determination.  For  this  purpose,  where 
there  is  no  treaty,  and  no  controlling  executive  or  legisla- 
tive act  or  judicial  decision,  resort  must  be  had  to  the 
customs  and  usages  of  civilized  nations. ' '  This  is  the  rule 
which  must  be  regarded  as  applying  when  the  President, 
as  commander-in-chief,  directs  the  movements  of  our  forces 
in  non-amicable  measures  short  of  war.  Action  of  this  kind 
has  usually  been  taken  in  Latin-America  rather  than  in 
Europe  or  Asia,  and  in  recent  years  it  has  been  so  frequent 
as  to  have  become  a  main  factor  in  developing  a  new  and 
more  sweeping  interpretation  of  the  Monroe  Doctrine.  The 
explanation  lies  largely,  of  course,  in  our  proximity  to  the 
Latin- American  world,  in  the  lack  of  order  and  stable  gov- 
ernment there,  in  our  acquisition  of  islands  in  the  Carib- 
bean, and  in  our  construction  of  and  interest  in  the  Panama 
Canal. 

It  has  been  pointed  out  in  a  previous  chapter  that,  by 
virtue  of  his  powers  as  commander-in-chief  of  the  army  and 
navy,  the  President  may  enter  into  executive  agreements 
during  time  of  peace.  He  may  also,  of  course,  conduct  dip- 
lomatic negotiations  which  do  not  develop  into  executive 

» For.  Eels,  of  V.  S.,  1895,  11,  1324,  quoted  in  Borchard,  Diplomatic  Protec- 
tion of  Citizens  Abroad,  448.    Cf.  ibid.,  II,  1257. 
'  175  U.  S.,  677,  700. 


FORCIBLE  MEASURES  SHORT  OF  WAR  275 

agreements  and  do  not  relate  specifically  to  military  or 
naval  matters.  The  combination  in  the  person  of  the  Presi- 
dent of  the  offices  of  diplomatic  head  of  the  nation  and 
commander-in-chief  of  the  armed  forces  enables  these 
powers  to  supplement  each  other  in  the  attainment  of  the 
objects  of  our  foreign  policy.  With  a  view,  for  example, 
to  emphasizing  his  diplomatic  representations,  the  Presi- 
dent may,  as  already  indicated,  cause  naval  or  military 
demonstrations  to  be  made  in  the  appropriate  localities,  as 
in  the  case  of  Panama  in  1903  and  in  that  of  Santo  Domingo 
in  1905.  In  the  latter  instance  the  object  was  to  maintain 
a  diplomatic  situation  pending  action  upon  a  treaty  by  the 
Senate.^ 

In  a  memorandum  of  the  solicitor  of  the  Department  of 
State  will  be  found  a  list  of  the  cases,  down  to  1912,  in 
which  the  forces  of  the  United  States  have  landed  on  for- 
eign soil  for  the  purpose  of  protecting  American  interests 
in  accordance  with  general  international  right,  there  being 
in  all  of  these  instances  no  treaty  right  involved,  no  dec- 
laration of  war  by  Congress,  and  no  existing  diplomatic 
difficulty  between  the  two  countries.^  About  fifty  instances 
are  enumerated,  from  the  landing  on  Amelia  Island  in  1811 
to  that  in  Honduras  in  1911.  The  principal  purposes  for 
which  our  forces  were  thrown  upon  foreign  soil  in  this 
period  were  the  simple  protection  of  American  citizens  in 
disturbed  areas ;  punishment  of  natives  for  the  murder  of, 
or  injuries  committed  against,  American  citizens ;  suppres- 
sion of  local  riots;  preservation  of  order;  and  securing  an 
indemnity,  or  seizing  custom  houses,  as  satisfaction  for 
injuries  and  insults  to  the  American  flag  and  uniform.^ 

In  some  instances  the  action  was  taken  by  our  military 
or  naval  commanders  without  specific  authorization  from 

*See  Foster,  Practice  of  Diplomacy,  327,  and  passages  in  Cong.  Eecord  there 
cited.    Of.  Willoughby,  Constitutional  Law,  I,  472. 

'  J.  Reuben  Clark,  Bight  to  Protect  Citizens  in  Foreign  Countries  by  Landing 
Forces  (Washington,  1912).    " 

*Ihid.,  pp.  31  ei  seq.,  and  appendix. 


276  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  Government,  and  therefore  on  their  own  responsibility. 
Thus,  as  stated  by  the  Secretary  of  the  Navy  in  1904,  "the 
crises  at  Panama  have  developed  so  quickly  that  the  [Navy] 
Department,  prior  to  1885,  had  small  opportunity  to  issue 
special  instructions,  but  the  senior  naval  officer  present 
took  such  measures  as  seemed  necessary.'*  ^  Such  action  of 
military  or  naval  commanders  has  sometimes  been  dis- 
avowed.2  In  most  cases,  however,  it  has  been  supported, 
thereby  becoming  the  official  action  of  the  Government 
itself. 

The  President  may  use  the  armed  forces  of  the  United 
States  in  or  against  a  foreign  country,  by  way  of  non- 
belligerent interposition,  under  three  different  conditions: 
(1)  when  acting  solely  under  his  constitutional  authority 
as  commander-in-chief  and  under  general  international 
right,  without  specific  authority  of  Congress  or  either 
branch  thereof;  (2)  when  acting  with  the  consent  of  both 
branches  of  Congress  as  embodied  in  an  act  or  joint  resolu- 
tion, which,  however,  is  not,  at  least  in  form,  a  declaration 
of  war;  and  (3)  when  acting  with  the  concurrence  of  the 
Senate,  as  well  as  of  the  government  of  the  country  against 
which,  or  in  whose  behalf,  the  forcible  operation  takes  place, 
as  embodied  in  general  terms  in  a  previous  treaty. 

SIMPLE  PRESIDENTIAL  ACTION 

One  of  the  most  important  cases  of  the  first  type  arose  in 
China  in  1900,  when  it  became  necessary  to  defend  the 

*  *  *  Use  by  the  United  States  of  a  Military  Force  in  the  Internal  Aff  aira  of 
Colombia,*'  Senate  doc.  143,  58th  Cong.,  2d  sess.,  p.  77. 

^'Thus  when  Commodore  Porter  landed  two  hundred  men  in  Porto  Eico  in 
1824  to  avenge  insults  which  the  local  authorities  had  visited  upon  the  officers 
of  an  American  vessel,  our  Government  disavowed  the  action  on  the  ground  that 
he  had  overstepped  the  limits  of  his  powers.  Ibid.,  49-50.  In  the  case  of  the 
occupancy  of  Amelia  Island  by  Greneral  George  Matthews  in  1812,  which  he 
deemed  to  be  in  accordance  with  his  general  instructions,  the  Government  dis- 
avowed the  methods  which  he  pursued,  but  nevertheless  retained  possession  of 
the  Island.  American  State  Papers,  Foreign  Belations,  III,  571-2;  Henry 
Adams,  History  of  the  United  States,  VI,  237-43;  Richardson,  Mess,  and  Pap, 

-    -     -        -  -   506-8. 


FORCIBLE  MEASURES  SHORT  OF  WAR  277 

Western  legations  against  the  attacks  of  the  Boxers.  Con- 
gress was  not  in  session  when  the  emergency  arose,  and 
in  joining  the  other  powers  in  sending  an  expedition  to 
Peking  the  President  acted  on  his  own  authority.  This  has 
been  called  **one  of  the  most  extreme  acts  of  executive 
authority  in  the  history  of  the  United  States. ' '  ^  But  it 
was  justified  by  the  urgency  of  the  situation  and  was  sup- 
ported by  public  opinion.  As  President  McKinley  said: 
**Our  declared  aims  involved  no  war  against  the  Chinese 
nation.  We  adhered  to  the  legitimate  office  of  rescuing  the 
imperiled  legation,  obtaining  redress  for  wrongs  already 
suffered,  securing  wherever  possible  the  safety  of  American 
life  and  property  in  China,  and  preventing  a  spread  of  the 
disorders  or  their  recurrence. ''  ^ 

Another  illustration  is  the  celebrated  case  of  Martin 
Koszta,  whose  detention  by  Austrian  authorities  in  1853 
led  the  captain  of  an  Ajnerican  warship  to  clear  his  decks 
for  action.  The  captain's  act  was  fully  supported  by  the 
executive  department  of  our  Government,  and  Congress 
indicated  its  approval  by  voting  a  gold  medal;  although, 
since  Koszta  was  not  a  fully  naturalized  citizen,  our  right 
under  international  law  to  protect  him  by  force  was  rather 
tenuous.^ 

Still  another  case  is  the  landing  of  American  marines  in 
Haiti  in  1915  to  protect  American  interests  which  were 
jeopardized  by  a  revolution.  Although  authorized  by  no 
act  of  Congress  or  treaty,  American  officials  administered 
the  customs  at  all  Haitian  ports  and  later  supervised  the 
national  election.  A  treaty  was  entered  into  in  the  follow- 
ing year,  however,  which  regulated  such  procedure  on  our 
part  for  the  future.* 

An  interesting  case  of  purely  executive  action  also  oc- 

*  Foster,  American  Diplomacy  in  the  Orient,  421. 

"Annual  Message,  Dec.  3,  1900,  For.  Eels.,  1900,  pp.  XIII  ff.;  see  also  ibid., 
pp.  102  ff. 

•W.  F.  Johnson,  America's  Foreign  delations,  I,  531-3;  cf.  a  dictum  by  the 
Supreme  Court  in  re  Neagle,  135  U.  S.,  64. 

*  39  Stat,  at  L.,  p.  1659 ;    cf .  also  39  ibid.,  p.  223. 


278  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

curred  in  1854  when  Captain  HoUins  of  the  U.  S.  S.  Cyane, 
after  public  proclamation,  bombarded  Greytown,  Nicara- 
gua, to  avenge  insults  visited  upon  the  American  minister.^ 
His  action  was  supported  by  President  Pierce,^  and  in  a 
case  involving  the  matter  the  lower  federal  court  said :  *^  As 
respects  the  interposition  of  the  Executive  abroad,  for  the 
protection  of  the  lives  or  property  of  the  citizen,  the  duty 
must,  of  necessity,  rest  in  the  discretion  of  the  President."  ^ 

In  view  of  insults  and  indignities  committed  by  the  forces 
of  General  Huerta  against  the  American  flag  and  the  per- 
son of  American  sailors  landed  for  peaceful  purposes  from 
our  vessels  in  the  harbors  of  Tampico  and  Vera  Cruz,  Presi- 
dent Wilson,  on  April  20,  1914,  appeared  before  a  joint 
session  of  Congress,  declaring  that  he  had  come  to  ask  the 
approval  and  support  of  that  body  in  the  course  which  he 
had  decided  to  pursue.  **No  doubt,*'  he  said,  **I  could  do 
what  is  necessary  in  the  circumstances  to  enforce  respect 
for  our  Government  without  recourse  to  the  Congress  and 
yet  not  exceed  my  constitutional  powers  as  President,  but 
I  do  not  wish  to  act  in  a  matter  possibly  of  so  grave  conse- 
quence except  in  close  conference  and  cooperation  with  both 
the  Senate  and  House.  I  therefore  come  to  ask  your 
approval  that  I  should  use  the  armed  forces  of  the  United 
States  in  such  ways  and  to  such  an  extent  as  may  be  neces- 
sary to  obtain  from  General  Huerta  and  his  adherents  the 
fullest  recognition  of  the  rights  and  dignity  of  the  United 
States. ''* 

Two  days  later  Congress  passed  a  joint  resolution  which 
declared  that  ^  ^  the  President  is  justified  in  the  employment 
of  the  armed  forces  of  the  United  States  to  enforce  his  de- 
mand for  unequivocal  amends   for  certain  affronts   and 

*  J.  Reuben  Clark,  Memorandum  of  Solicitor,  53. 

'Richardson,  Mess,  and  Pap.  of  the  Presidents,  V,  282;  see  also  Moore, 
Digest  of  Internat.  Law,  VII,  112-6. 

•4  Blatchford,  451,  quoted  in  Corwin,  President's  Control  of  Foreign  Bela- 
tions,  145.  For  other  instances,  see  Moore,  Digest  of  Internat.  Law,  VII,  sect. 
1093. 

*  Congressional  Record,  April  20,  1914,  vol.  51,  p.  6909. 


FORCIBLE  MEASURES  SHORT  OF  WAR  279 

indignities  committed  against  the  United  States. '**  The 
President  had  asked  for  approval,  not  for  authority;  hence 
the  use  of  the  word  ** justified*'  rather  than  of  ** author- 
ized.'* In  order  to  make  clear  that  this  did  not  constitute 
a  declaration  of  war  or  an  authorization  to  wage  war,  the 
resolution  added  that  *  *  the  United  States  disclaims  any  hos- 
tility to  the  Mexican  people  or  any  purpose  to  make  war  \ 
upon  Mexico."  ^ 

While  deeming  it  expedient  to  secure  the  support  of  Con- 
gress, President  Wilson  did  not  consider  any  action  by  that 
body  to  be  legally  necessary  in  order  that  he  might  adopt 
forcible  measures  in  Mexico.  This  is  shown  by  his  action 
on  April  21,  the  day  before  the  joint  resolution  was  passed, 
in  landing  forces  and  seizing  the  custom  house  and  other 
buildings  at  Vera  Cruz,  with  the  loss  of  several  men  killed 
and  injured.  The  failure  to  wait  for  the  passage  of  the 
resolution  by  Congress  was  doubtless  due  to  the  approach 
of  a  German  ship  carrying  arms  and  ammunition.  In  the 
absence  of  a  state  of  war  it  was  considered  of  doubtful 
legality  to  establish  a  blockade  effective  for  third  states  and 
so  detain  this  ship;  but  by  seizing  the  custom  house  the 
munitions  could  be  prevented  from  reaching  General 
Huerta. 

The  occupation  of  Vera  Cruz  continued  about  seven 
months.  On  April  23  the  Mexican  foreign  minister  handed 
our  charg^  d'affaires  at  Mexico  City  his  passports  with  a 
note  which  declared  that  **  according  to  international  law, 
the  acts  of  the  armed  forces  of  the  United  States  .  .  .  must 
be  considered  as  an  initiation  of  war  against  Mexico. ' '  ^ 
The  situation  thus  brought  on  by  the  President  under  the 
provocation  of  Huerta,  while  technically  a  reprisal,  cer- 
tainly constituted  material,  if  not  legal,  war,  and  it  might 

*  38  Stat,  at  L.,  p.  770. 

"  Americxm  Year  Book,  1914,  p.  35. 


280  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

easily  have  developed  into  legal  war,  in  spite  of  the  fact 
that  Congress  had  neither  declared  war  nor  authorized  the 
use  of  force  by  the  President. 

PRESIDENTIAL.  ACTION  WITH  CONGRESSIONAL  CONCURRENCE 

The  second  class  of  cases  of  the  President's  use  of  force 
short  of  war  consists  of  those  in  which  he  acts  with  the 
consent  or  concurrence  of  Congress.  Sometimes  the  action 
of  Congress  takes  the  form  of  expressly  authorizing  the 
President  to  use  the  public  armed  forces  of  the  United 
States  to  defend  American  rights  and  to  repel  aggression. 
The  appropriation  by  Congress  of  funds  to  support  and 
maintain  an  army  and  navy  is  sufficient  action  on  the  part 
of  that  body  to  enable  the  President,  as  commander-in-chief, 
to  use  force  for  those  purposes.  No  special  authorization 
is  legally  necessary,  although  it  may  be  given  with  a  view 
to  showing  the  practical  cooperation  of  the  two  houses  in 
presenting  a  united  front  against  foreign  aggression. 

The  occasions  on  which  Congress  has  authorized  or  con- 
curred in  the  use  of  force  by  the  President  are  numerous. 
Acts  of  1807  and  1819  authorized  and  requested  him  to 
employ  the  armed  vessels  of  the  United  States  to  capture 
slave-smuggling  ships  and  to  protect  our  merchant  ships 
and  crews  from  piratical  aggressions:^  A  secret  act  of 
1811  authorized  him  ^*to  take  possession  of  and  occupy 
.  .  .  the  territory  lying  east  of  the  River  Perdido  and  south 
of  the  state  of  Georgia''  and  provided  that  for  this  purpose, 
and  in  order  to  maintain  therein  the  authority  of  the  United 
States,  *^he  may  employ  any  part  of  the  army  and  navy  of 
the  United  States  which  he  may  deem  necessary. ' '  ^ 

The  Constitution  authorizes  Congress  to  provide  for 
calling  forth  the  militia  to  execute  the  laws  and  repel  in- 
vasions, and  in  pursuance  of  this  power  general  statutes 

»2  Stat,  at  L.,  428;  3  Stat,  at  L».,  511. 
»3  Stat,  at  li.,  471. 


FORCIBLE  MEASURES  SHORT  OF  WAR  281 

were  passed  in  1795  and  1807  declaring  it  to  be  lawful  for 
the  President  to  call  forth  the  militia  and  to  employ  the 
land  and  naval  forces  of  the  United  States  to  suppress 
insurrection  or  to  repel  invasion  from  any  foreign  nation 
or  Indian  tribe.^  Congress,  of  course,  is  not  always  in  ses- 
sion, and  when  it  becomes  necessary  to  defend  the  country 
against  sudden  and  unexpected  aggression  the  President  is 
bound  to  act,  even  before  Congress  has  assembled.  In 
such  a  case,  moreover,  the  President  acts  under  his  consti- 
tutional authority  to  see  that  the  laws  are  faithfully  exe- 
cuted, since  an  invasion  necessarily  interferes  with  the 
complete  enforcement  of  federal  law  on  our  territory. 
The  Supreme  Court  has  held  that,  in  the  matter  of  repel- 
ling invasion,  the  President  is  the  sole  judge  of  whether  the 
exigency  warrants  calling  out  the  forces.^ 

During  the  controversy  with  Great  Britain  over  the 
Northeast  boundary  line  Congress  passed,  in  1839,  an  act 
authorizing  the  President  **to  resist  any  attempt  on  the 
part  of  Great  Britain  to  enforce  by  arms  her  claim  to  ex- 
clusive jurisdiction  over  that  part  of  the  state  of  Maine" 
which  was  in  dispute ;  and  for  that  purpose  to  employ  the 
naval  and  military  forces  of  the  United  States  and  such 
portions  of  the  militia  as  he  might  deem  it  advisable  to  call 
into  service.  The  act  further  autljorized  him  to  accept  the 
service  of  volunteers  in  case  of  actual  or  imminent  invasion 
of  the  territory  of  the  United  States  at  a  time  when  Con- 
gress was  not  in  session  and  could  not  be  convened  in  time 
to  act  upon  the  subject.^ 

A  case  of  reprisal  authorized  by  Congress  occurred  in 
1858,  when,  by  joint  resolution,  it  was  provided  that  ''for 
the  purpose  of  adjusting  the  differences  between  the  United 
States  and  the  republic  of  Paraguay  in  connection  with  the 
attack  upon  the  United  States  steamer  Water  Witch  .  .  . 
the  President  is  hereby  authorized  to  adopt  such  measures 

»  1  Stat,  at  L.,  424;  2  ibid.,  443. 

*  Martin  v.  Mott,  12  Wheat.,  19. 

»  Act  of  Mar.  3,  1839,  5  Stat,  at  L.,  355-6. 


282  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

and  use  such  force  as  in  his  judgment  may  be  necessary 
and  advisable  in  the  event  of  a  refusal  of  just  satisfaction 
by  the  Government  of  Paraguay.  ^ '  ^  The  resolution  was 
opposed  in  the  Senate  on  the  ground  that  it  authorized  the 
President  *Ho  commence  war  in  his  discretion,''  but  this 
contention  was  rebutted  by  the  measure's  supporters.^  In 
this  connection  should  be  mentioned  also  the  act  of  1856 
which  authorized  the  President,  at  his  discretion,  to  employ 
the  land  and  naval  forces  of  the  United  States  to  protect 
the  rights  of  American  discoverers  of  guano  islands.^ 

There  is  thus  abundant  precedent  for  action  by  Congress 
authorizing  the  President  to  use  force  against  foreign 
powers  without  going  so  far  as  to  declare  war.  It  does  not 
follow,  however,  that  because  Congress  *^ authorizes"  the 
President  to  use  force,  he  would  not  have  such  authority 
independently.  It  is  merely  deemed  good  policy  that  the 
President  should  have  the  moral  support  of  the  legislative 
branch,  irrespective  of  the  question  of  legal  power.  It  is 
true  that  President  Buchanan  took  the  view  that  Congres- 
sional authorization  is  necessary  to  enable  the  President 
to  conduct  warlike  operations,  except  to  repel  an  actual 
attack  of  an  enemy.  In  accordance  with  this  belief,  he  re- 
quested Congress  to  authorize  him  to  use  force  for  the 
protection  of  American  lives  and  property  against  unlaw- 
ful attack  while  traversing  the  ocean-to-ocean  transit  routes 
in   Central  America.^    Most   other   Presidents,   however, 

*  Joint  Eesolution  of  June  2,  1858,  11  Stat,  at  L.,  370.  Cf.  also  the  joint 
resolution  of  June  19,  1890,  which  became  law  without  the  President's  sig- 
nature, authorizing  reprisals  against  Venezuela.    26  Stat,  at  L.,  674. 

2  Cong.  Globe,  35th  Cong.,  1st  sess.,  pt.  II,  pp.  1704,  1727,  1783,  1929.  Memo- 
randum of  the  Solicitor,  34.  For  an  account  of  the  circumstances  of  the  attack 
on  the  Water  Witch,  see  Moore,  Digest  of  Intemat.  Law,  VII,  109-12. 

3  Act  of  Aug.  18,  1856,  11  Stat,  at  L.,  120. 

*  Eichardson,  Mess,  and  Pap.  of  the  Presidents,  V,  570.  Buchanan,  however, 
did  not  always  consistently  hold  this  view.  See,  for  example,  his  apparently 
approving  comments  upon  the  destruction  of  the  Barrier  forts  in  China  by 
our  squadron  to  avenge  an  alleged  insult  to  our  flag,  and  upon  the  dispatch 
of  a  naval  force  to  Cuban  waters  to  protect  American  vessels  from  search  and 
detention  by  warships  of  any  other  nation.  Both  actions  were  taken  without 
express  Congressional  authority.  Eichardson,  Mess,  and  Pap.  of  the  Presidents, 
V,  506-7.    Mr.  Cass,  his  secretary  of  state,  said  in  1857  that  *  *  our  naval  officers 


FORCIBLE  MEASURES  SHORT  OF  WAR  283 

have  not  shared  Buchanan's  view.  Even  Jefferson,  al- 
though admitting  that  **  Congress  alone  is  constitutionally 
invested  with  the  power  of  changing  our  condition  from 
peace  to  war/'  sent  a  small  squadron  of  frigates  into  the 
Mediterranean,  without  Congressional  authorization,  with 
orders  to  protect  our  commerce  against  threatened 
attack.^  This  attitude  seems  also  to  be  taken  by  the  Su- 
preme Court,  judging  from  the  line  of  reasoning  adopted 
in  the  Prize  cases,  and  also  by  analogy  from  the  doctrine 
laid  down  in  the  Neagle  case  to  the  effect  that  the  President 
may  exercise  his  constitutional  powers  without  waiting,  in 
all  cases,  for  ancillary  Congressional  legislation.^  Since 
such  legislation  is  not  a  necessary  accompaniment  of 
Presidential  action,  it  follows  that  Congress  has  no  special 
power  to  direct  the  President  in  the  use  of  the  armed  forces 
in  operations  not  amounting  to  foreign  war.^ 


PRESIDENTIAL  ACTION  UNDER  TREATY  AUTHORIZATION 

We  may  now  consider  the  power  of  the  President  to  use 
force  with  the  concurrence  of  the  Senate  and  with  the 
consent,  as  embodied  in  a  previous  treaty,  of  the  govern- 
ment of  the  country  against  which,  or  in  whose  behalf,  the 
forcible  operation  takes  place.  Under  our  treaty  of  1846 
with  New  Granada  (Colombia)  we  guaranteed  the  *^ perfect 
neutrality ''  of  the  Isthmus  of  Panama  and  the  rights  of 
sovereignty  and  property  which  New  Granada  had  over 
that  territory,^  and  by  the  Clayton-Bulwer  treaty  of  185Q 
we  entered  into  a  similar  covenant  with  Great  Britain 

have  the  right — it  is  their  duty,  indeed — to  employ  the  forces  under  their 
command,  not  only  in  self-defense,  but  for  the  protection  of  the  persons  and 
property  of  our  citizens  when  exposed  to  acts  of  lawless  outrage,  and  this  they 
have  done  both  in  China  and  elsewhere."  He  added,  however,  that  ''military 
expeditions  into  Chinese  territory  cannot  be  undertaken  without  the  authority 
of  the  national  legislature. ' '    Moore,  Digest  of  Internat.  Law,  VII,  164, 

^  Moore,  Digest  of  Internat.  Law,  VII,  162. 

^  135  U.  S.,  1.    Cf .  Logan  v.  U.  S.,  144  U.  S.,  263,  294. 

'  Cf .  Memorandum  of  the  Solicitor,  36. 

*  Malloy,  Treaties,  etc.,  312. 


284  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

respecting  the  Isthmian  canal.^  Further,  through  our 
treaty  of  1904  with  Panama  we  undertook  to  guarantee  and 
maintain  the  independence  of  that  republic.^  In  this  same 
agreement  we  reserved  the  right  to  employ  armed  forces,  if 
it  should  become  necessary,  for  the  safety  or  protection 
of  the  canal,  and  to  use  at  any  time  and  in  our  discretion 
our  police  and  land  and  naval  forces,  or  to  establish  fortifi- 
cations for  these  purposes.^  ^' These  treaty  provisions  do 
not  go  so  far  as  to  require  a  declaration  of  war  on  our 
part,  but  they  almost  necessarily  imply  intervention  or 
warlike  measures  by  us  in  case  the  independence  or  neu- 
trality guaranteed  is  threatened  or  in  imminent  danger/'  * 
As  a  matter  of  fact,  in  pursuance  of  the  above-mentioned 
provision  of  the  treaty  of  1846  with  New  Granada,  the 
United  States  has  on  several  occasions  landed  forces  on 
the  Isthmus  of  Panama.  In  September,  1902,  such  forces 
were  landed  solely  on  the  initiative  of  the  United  States, 
although  the  Panama  authorities  were  informed  in  advance. 
Usually,  these  landings  were  made  at  the  request  of  the 
authorities  of  New  Granada  (or  Colombia),  and  for  the 
purpose  of  protecting  United  States  property  and  main- 
taining order  and  the  freedom  of  transit  across  the  Isthmus 
under  the  provisions  of  the  treaty.^ 

The  peculiar  relations  existing  between  the  United  States 
and  the  states  of  Central  America  have,  as  previously  indi- 
cated, led  to  numerous  landings  of  American  forces  in 
those  countries  without  a  declaration  of  war.  In  this  con- 
nection ex-President  Taft  says: 

'*What  constitutes  an  act  of  war  by  the  land  or  naval 
forces  of  the  United  States  is  sometimes  a  nice  question 
of  law  and  fact.    It  really  seems  to  differ  with  the  charac- 

*  Malloy,  Treaties,  etc.,  664. 
^Ihid.,  1349. 

»76id,  1356. 

*  Mathews,  * '  The  League  of  Nations  and  the  Constitution, ' '  Mich.  Law.  Bev., 
XVEII,  385  (March,  1920). 

" ' '  Uee  by  the  United  States  of  a  Military  Force  in  the  Internal  Affairs  of 
Colombia,"  etc..  Senate  Doc.  143,  58th  Cong.,  2d  sess.,  pp.  2-3. 


FORCIBLE  MEASURES  SHORT  OF  WAR  285 

ter  of  the  nation  whose  relations  with  the  United  States 
are  affected.  The  unstable  condition  as  to  law  and  order 
of  some  of  the  Central  American  republics  seems  to  create 
different  rules  of  international  law  from  those  that  obtain 
in  governments  that  can  be  depended  upon  to  maintain  their 
own  peace  and  order.  It  has  been  frequently  necessary 
for  the  President  to  direct  the  landing  of  naval  marines 
from  the  United  States  vessels  in  Central  America  to  pro- 
tect the  American  consulate  and  American  citizens  and 
their  property.  He  has  done  this  under  his  general  power 
as  commander-in-chief.  It  grows  not  out  of  any  specific 
act  of  Congress,  but  out  of  that  obligation,  inferable  from 
the  Constitution,  of  the  government  to  protect  the  rights 
of  an  American  citizen  against  foreign  aggression.  ...  In 
practice  the  use  of  the  naval  marines  for  such  a  purpose 
has  become  so  common  that  their  landing  is  treated  as  a 
mere  local  police  measure,  whereas  if  troops  of  the  regular 
army  are  used  for  such  a  purpose  it  seems  to  take  on  the 
color  of  an  act  of  war. ' '  ^ 

He  adds  that  during  his  administration  an  insurrection 
in  Nicaragua  led  to  the  landing  of  some  of  our  marines 
and  to  **  quite  a  campaign '^  for  the  protection  of  American 
citizens  and  their  property. 

The  landing  of  American  forces  in  Nicaragua  in  1912 
came  by  way  of  practical  enforcement  of  that  provision  of 
the  Washington  Conventions  of  1907  between  the  five  Cen- 
tral American  republics  which  declared  that  *^  every  dispo- 
sition or  measure  which  may  tend  to  alter  the  constitutional 
organization  in  any  of  them  is  to  be  deemed  a  menace  to 
the  peace  of  said  republics.''^  The  United  States,  it  is 
true,  was  not  formally  a  party  to  these  conventions.  But 
the  agreements  were  concluded  under  the  auspices  of  our 
Government,  and  an  official  statement  of  the  policy  of  the 
United  States  in  the  Nicaragua  case  was  made  to  the  effect 
that  the  measures  which  we  found  it  necessary  to  take  in 

*  Our  Chief  Magistrate  and  His  Powers,  95-6. 
»Mall07,  Treaties,  etc.,  2393. 


286  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

that  country  in  1912  were  in  pursuance  of  the  **  moral 
mandate''  which  the  United  States  had  under  the  Washing- 
ton Conventions.^ 


liATIN-AMERICAN    PROTECTORATES 

The  policy  of  intervention  pursued  by  the  United  States 
in  continental  Latin- America  has  for  its  main  precedents 
the  relation  set  up  between  the  United  States  and  Cuba  as 
a  result  of  the  Spanish- American  war.  The  terms  of  this 
relation  were  embodied  both  in  an  act  of  Congress  and 
in  a  treaty.  By  the  Piatt  Amendment  of  1901,  Congress 
stipulated  that,  as  a  condition  of  the  withdrawal  of  Ameri- 
can troops  from  Cuba,  a  government  should  be  established 
in  that  island  under  a  constitution  providing,  among  other 
things,  that  the  new  government  should  itself  consent  that 
the  United  States  should  ^'exercise  the  right  to  intervene 
for  the  preservation  of  Cuban  independence  and  the  main- 
tenance of  a  government  adequate  for  the  protection  of 
life,  property  and  individual  liberty. ' '  ^  The  substance  of 
this  provision  was  embodied  not  only  in  the  Cuban  con- 
stitution but  also  in  a  treaty  between  the  United  States 
and  Cuba,  ratified  in  1904.^  Two  years  later  the  disordered 
condition  of  affairs  in  the  island  compelled  the  United 
States  to  intervene  in  accordance  with  the  agreement.  A 
provisional  military  government  displaced  the  Cuban  gov- 
ernment and  held  the  field  for  more  than  two  years.  Early 
in  1909,  however,  American  troops  were  again  withdrawn, 
and  the  Cubans  resumed  control.  No  subsequent  interven- 
tion has  taken  place,  although  in  1912,  and  again  in  1917, 
one  was  threatened.* 

Our  relations  with  Cuba,  which  thus  make  of  that  island 
a  virtual  protectorate  of  the  United  States,  have  served 

^For.  Bels.  of  TJ.  S.,  1912,  pp.  1042-4. 
*Act  of  March  2,  1901,  31  Stat,  of  L.,  897. 
•Malloy,  Treaties,  etc.,  364. 
*For.  Bels.  of  U.  8.,  1912,  pp.  248  ff. 


FORCIBLE  MEASURES  SHORT  OF  WAR  287 

as  a  model  and  precedent,  to  some  extent  at  least,  for  the 
development  of  similar  relations  with  other  Latin-Ameri- 
can countries,  especially  Haiti,  San  Domingo,  Panama,  and 
Nicaragua.  Thus  in  a  clause  manifestly  modeled  on  the 
Piatt  Amendment  a  treaty  of  1915  with  Haiti  provides  that 
*  *  should  the  necessity  occur,  the  United  States  will  lend  an 
efficient  aid  for  the  preservation  of  Haitian  independence 
and  the  maintenance  of  a  government  adequate  for  the 
protection  of  life,  property,  and  individual  liberty/'  ^  Op- 
portunity to  lend  the  *^ efficient  aid*'  specified,  by  landing 
marines  for  police  purposes,  has  not  been  wanting.  The 
Haitian  treaty  provides  also  that  the  insular  constabulary 
shall  be  organized  and  officered  by  Americans,  to  be  ap- 
pointed by  the  President  of  Haiti  on  the  nomination  of 
the  President  of  the  United  States  f  and  by  an  act  of  1916 
Congress  authorized  the  President,  *4n  his  discretion,  to 
detail  to  assist  the  Republic  of  Haiti  such  officers  and  en- 
listed men  of  the  United  States  Navy  and  Marine  Corps  as 
may  be  mutually  agreed  upon  by  him  and  the  President  of 
Haiti.'' ^  Since  1916  the  military  occupation  of  Santo 
Domingo  has  been  maintained  by  American  marines,  as  a 
mode  of  enforcing  Art.  Ill  of  the  treaty  of  1907  between 
the  United  States  and  that  republic* 

SUMMARY  AND  CONCLUSION" 

Under  the  Constitution  Congress  is  vested  with  the  power 
of  raising,  supporting,  and  equipping  the  military  and 
naval  forces  of  the  United  States  and  of  making  appro- 
priations for  that  purpose,  subject  to  the  condition  that  ap- 
propriations for  the  army  shall  not  extend  beyond  a  period 

*39  Stat,  at  L.,  pt.  2,  p.  1659.  On  this  treaty  see  Am.  Jour,  of  Intemat. 
Law,  X,  859-65  (Oct.,  1916). 

Ubid.,  1658. 

'  39  Stat,  at  L.,  223.  Congress  made  similar  provision  in  1918  for  the  Domini- 
can republic.     40  Stat,  at  L.,  437. 

*P.  M.  Brown,  "The  Armed  Occupation  of  Santo  Domingo/'  Am,  Jour,  of 
Intemat.  Law,  XI,  394-9  (Apr.,  1917). 


288  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

of  two  years. ^  The  power  of  directing  the  movements  of 
the  armed  forces,  however,  is  lodged  in  the  President,  by 
virtue  of  his  status  as  commander-in-chief  of  the  army  and 
navy.  Although  the  power  to  declare  war  is  expressly 
vested  only  in  Congress,  that  body  is  not  always  in  session, 
and  when  it  becomes  necessary  to  defend  the  country 
against  sudden  aggression  before  Congress  can  be  as- 
sembled, the  President,  in  his  capacity  of  commander-in- 
chief,  may  repel  invasion  through  the  use  of  the  armed 
forces  without  special  legislative  authorization.^ 

That  the  President  would  find  occasion  to  conduct  war- 
like operations  of  a  defensive  character  without  express 
legislative  authorization  was  expected  by  the  framers  of 
the  Constitution,  who  accordingly  substituted  ** declare" 
for  '^make''  in  the  grant  of  the  war  power  to  Congress, 
*^  leaving  to  the  Executive  the  power  to  repel  sudden 
attacks.''^  Apropos  of  the  Hague  Convention  concerning 
the  opening  of  hostilities,  the  American  delegation  to  the 
second  Hague  Conference  asserted  that  *'it  has  been  the 
unbroken  practice  of  the  Government  of  the  United  States 
for  more  than  a  century  to  recognize  in  the  President,  as 
the  commander-in-chief  of  the  constitutional  land  and  naval 
forces,  full  power  to  defend  the  territory  of  the  United 
States  from  invasion,  and  to  exercise  at  all  times  and  in 
all  places  the  right  of  national  self-defense.''*  As  the 
Supreme  Court  declared  in  the  Prize  Cases,  *4f  a  war  be 
made  by  invasion  of  a  foreign  nation,  the  President  is  not 
only  authorized  but  bound  to  resist  force  by  force.     He 

»Art.  I,  sect.  8. 

'  The  President  might  also  take  such  stej^,  if  he  deemed  it  necessary  to  do 
so,  before  Congress  has  acted,  even  though  that  body  is  in  session  at  the  time 
the  emergency  arises.  In  this  connection  it  may  be  noted  that  each  of  the 
several  states  of  the  Union,  although  having  no  power  to  declare  war  against 
a  foreign  nation,  may  defend  itself  by  force  if  actually  invaded  or  in  such 
imminent  danger  as  will  not  admit  of  delay.    Constitution,  Art.  I,  sect.  10,  cl.  3. 

^Journal  of  the  Convention  (Hunt  ed.),  II,  188;  Cf.  Curtis,  Constitutional 
History  of  the  V.  S.,  II,  332,  and  Whiting,  War  Powers  under  the  Constitution 
(43rd  ed.),  p.  39. 

*  G.  B.  Davis,  ' '  Amelioration  of  the  Rules  of  War  on  Land,  "Am.  Jour.  Inter- 
nat.  Law,  II,  66  (Jan.,  1908). 


FORCIBLE  MEASURES  SHORT  OP  WAR  289 

does  not  initiate  the  war,  but  is  bound  to  accept  the  chal- 
lenge without  waiting  for  any  special  legislative  author- 
ity. ' '  ^  This  statement  is  undoubtedly  true  as  a  corollary 
of  the  general  principle  of  national  self-preservation,  as 
well  as  by  implication  from  the  President's  constitutional 
powers.  The  question,  however,  has  been  raised  whether 
the  President  may  recognize  a  foreign  war  not  attended 
by  invasion  of  American  territory  and  by  his  act  produce 
the  juridical  results  of  a  status  of  war,  and  the  Prize  Cases 
have  been  referred  to  as  answering  the  query  in  the  affirma- 
tive.2  It  should  be  remembered,  however,  that  the  Prize 
Cases  were  decided  by  a  divided  court  (four  justices,  in- 
cluding Chief  Justice  Taney,  dissenting),  and  that  the 
statements  in  the  majority  opinion  were  obiter  in  so  far 
as  they  applied  to  a  foreign  war.  The  better  law,  at  least 
theoretically,  would  seem  to  be  embraced  in  the  assertion 
of  Justice  Nelson,  speaking  for  the  minority  of  the  court, 
that  the  **  President  does  not  possess  the  power  under  the 
Constitution  to  declare  war  or  recognize  its  existence  with- 
in the  meaning  of  the  law  of  nations,  which  carries  with  it 
belligerent  rights  and  thus  change  the  country  and  all  its 
citizens  from  a  state  of  peace  to  a  state  of  war.  '*  Moreover, 
as  was  pointed  out  in  the  majority  opinion,  ''a  civil  war 
is  never  publicly  proclaimed,  eo  nomine'^;  and  if  the  Presi- 
dent had  performed  acts  requiring  legislative  authoriza- 
tion, this  was  to  be  regarded  as  having  been  given  by  the 
act  of  Congress  of  1861  '  ^  approving,  legalizing  and  making 
valid  all  the  acts,  proclamations  and  orders  of  the  President 
as  if  they  had  been  issued  and  done  under  the  previous  ex- 
press authority  and  direction  of  Congress. '^  The  majority 
of  the  court  did  not  admit  that  this  act  of  Congress  was 
necessary.  As  was  pointed  out  in  the  dissenting  opinion, 
however,  the  President,  by  virtue  of  his  constitutional 
power  to  see  that  the  laws  are  executed  and  of  acts  of 

*  2  Black,  635.    Cf .  Talbot  v.  Janson,  3  Dall.,  133. 

"Corwin,  The  President's  Control  of  Foreign  Relations,  141-2. 


290  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Congress  authorizing  him  under  certain  circumstances  to 
call  out  the  militia,  could  meet  a  situation  arising  during 
the  recess  of  Congress  due  to  foreign  invasion  of  our  ter- 
ritory,^ or  an  insurrection  of  any  considerable  dimensions, 
since  such  disturbances  necessarily  interfere  with  the  en- 
forcement of  Federal  law.^  At  any  rate,  the  Prize  Cases 
show  conclusively  that  the  question  of  the  existence  of  war 
and  of  the  date  of  its  beginning  is  a  political  one,  to  be 
determined  by  the  political  department  of  the  government. 
The  courts  consider  such  determination  as  binding  upon 
themselves. 

The  question  of  the  relative  powers  of  the  President  as 
commander-in-chief  and  of  Congress  over  the  military  and 
naval  forces  of  the  United  States  was  raised  in  the  Senate 
in  connection  with  the  debate  upon  the  Lodge  reservation 
to  Article  X  of  the  Covenant  of  the  League  of  Nations. 
This  reservation  was  to  the  effect  that  Congress,  under  the 
Constitution,  **has  the  sole  power  to  declare  war  or  au- 
thorize the  employment  of  the  military  or  naval  forces  of 
the  United  States.''^  As  was  pointed  out  by  Senator 
Borah,  this  statement,  apparently  intended  as  a  mere 
declaration  of  fact,  is  not  strictly  correct.*  It  is,  of  course, 
true  that  Congress  alone  can  make  provision  for  raising  and 
maintaining  military  and  naval  forces,  and  that  it  may 
make  rules  for  the  government  and  regulation  of  such 
forces.  But  it  is  not  true  that,  after  raising  forces  and  pro- 
viding for  their  support.  Congress  can  restrict  the  discre- 
tion of  the  President,  as  commander-in-chief,  in  directing 
their   movements    and   in   otherwise   disposing   of   them. 

*  Our  ships  on  the  high  seas  and  our  embassy  and  legation  buildings  abroad 
are  technically  parts  of  our  territory. 

"In  Hamilton  v.  McClaughry  (136  Fed.,  445),  however,  it  was  held  that  the 
question  as  to  the  existence  of  a  condition  of  war  is  within  the  exclusive  juris- 
diction of  the  political  department  of  the  Government,  and  that  the  Boxer  up- 
rising of  1900  in  China  constituted  a  "time  of  war"  within  the  meaning  of 
the  fifty-eighth  article  of  war,  providing  for  the  trial  by  military  court-martial 
of  certain  offenses  committed  by  soldiers  in  time  of  war. 

» Cong.  Record,  March  19,  1920,  p.  4899. 

*  See  his  speeches  in  Cong.  Record,  November  5,  1919,  and  November  10,  1919, 
pp.  8465,  8681  ff. 


FORCIBLE  MEASURES  SHORT  OF  WAR  291 

Theoretically,  Congress  might,  indeed,  impose  an  indirect 
limit  on  the  President 's  powers  by  refusing  to  make  further 
military  or  naval  appropriations.  In  the  present  state  of 
public  opinion  at  home  and  of  conditions  abroad  it  would 
be  politically  impossible,  however,  for  the  legislative  branch 
thus  to  leave  the  country  defenseless. 

As  long  as  armed  forces  exist,  the  President,  as  com- 
mander-in-chief, may  on  occasion  use  them  to  conduct  war- 
like operations  without  special  legislative  authorization. 
This  is  especially  true  of  defensive  operations,  which  are 
dependent  not  on  the  choice  of  our  Government  but  on  that 
of  any  aggressive  foreign  power.^  Even  in  the  absence  of 
treaty  provision  or  legislative  authorization,  the  President 
on  his  own  initiative  may,  as  commander-in-chief,  send  mil- 
itary and  naval  forces  to  foreign  countries  to  protect  Amer- 
ican lives,  property,  and  even  inchoate  interests.  Where 
there  is  neither  treaty  provision  nor  legislative  authoriza- 
tion, and  where  no  danger  to  American  interests  exists,  he 
cannot  land  troops  for  hostile  purposes  or  commit  acts  of 
a  warlike  nature  without  usurping  his  authority;  but  he 
may  make  naval  demonstrations  and  dispatch  warships  on 
ostensibly  peaceful  missions,  as  in  the  case  of  the  sending 
of  the  battleship  Maine  into  Havana  harbor.  Where  we 
have  a  treaty  with  a  foreign  country  authorizing  us  to  do 
so,  the  President,  by  virtue  of  his  power  to  see  that  the 
laws  (including  treaties,  which  are  a  part  of  the  supreme 
law  of  the  land)  are  executed,  may,  as  commander-in-chief, 
send  military  or  naval  forces  to  that  country  to  maintain 
peace  and  order,  irrespective  of  whether  American  inter- 

*Cf.  Whiting,  War  Powers  under  the  Constitution  (43rd  ed.),  39.  That 
Congress  cannot,  notwithstanding  its  military  powers,  control  the  action  of  tl^e 
President  as  commander-in-chief  was  indicated  by  an  attempt  to  do  this  in 
1912  through  its  financial  power.  The  attempt  took  the  form  of  a  proposed 
amendment  to  the  Army  Appropriation  Bill  providing  that  "no  part  of  the 
money  herein  appropriated  shall  be  used  for  the  pay  or  supplies  of  any  part  of 
the  army  employed,  stationed  or  on  duty  in  any  country  or  territory  beyond 
the  jurisdiction  of  the  laws  of  the  United  States."  The  proviso  was  added, 
however,  **that  this  prohibition  shall  not  apply  to  cases  of  emergency  within 
the  discretion  of  the  President  arising  at  a  time  when  the  Congress  is  not  in 
session."    Cong.  Record,  August  14,  1912,  vol.  48,  p.  10921. 


m. 


292  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ests  are  directly  involved.  This  is  not  war,  nor  necessarily 
a  preliminary  of  war;  rather,  it  is  intended  as  a  measure 
for  the  prevention  of  war,  as  was  notably  true  in  a  number 
of  instances  in  which  the  United  States  landed  forces  in 
Latin-American  countries.  Such  action  has  ofteji  been 
considered  necessary  in  order  to  avoid  armed  intervention 
by  European  powers  in  the  affairs  of  such  countries  in  vio- 
lation of  the  Monroe  Doctrine.  As  we  have  seen,  the  pe- 
culiar relations  with  and  interests  in  Latin  America  which 
are  construed  to  give  us  a  right  of  intervention,  have  now 
in  several  instances,  e.g,,  Cuba,  Panama,  and  Haiti,  been 
regularized  by  treaty  provision. 

The  President  has  sometimes  undertaken  to  use  force 
for  the  protection  of  territory  in  Latin- American  countries 
pending  its  annexation  to  the  United  States  under  a  treaty 
not  yet  approved  by  the  Senate.  The  action  of  President 
Grant  in  sending  naval  forces  to  Santo  Domingo  in  1871 
under  such  circumstances  was  denounced  by  Senator  Sum- 
ner as  involving  an  unlawful  assumption  by  the  President 
of  the  war-making  power  for  the  protection  of  what  Sumner 
himself  characterized  as  ^ inchoate''  or  ^^ contingent''  in- 
terests of  the  United  States.  The  Senator's  resolutions 
condemning  the  action  of  the  President  were,  however,  laid 
on  the  table  by  a  vote  of  more  than  two  to  one.^  Similar  ac- 
tion of  President  Tyler  with  reference  to  Texas  in  1844  was 
also  strongly  denounced  in  the  Senate.  In  neither  of  these 
cases  was  the  ratification  of  the  pending  treaty  advised  and 
consented  to  by  the  Senate,  although  in  the  case  of  Texas 
a  joint  resolution  of  annexation  was   eventually  passed. 

In  view  of  subsequent  developments,  the  attitude  of  the 
Senators  who  denounced  the  action  of  the  President  on 
these  occasions  seems  somewhat  overdrawn.  As  already 
indicated,  President  Roosevelt,  in  1905,  undertook  to  main- 
tain in  Santo  Domingo,  by  the  use  of  our  naval  forces,  a 

*  Moore,  Digest  of  Intemat.  Law,  I,  278-9,  and  references  to  Cong.  Globe 
there  cited. 


FORCIBLE  MEASURES  SHORT  OF  WAR  293 

diplomatic  situation  pending  action  upon  a  treaty  by  the 
Senate,  which,  in  fact,  failed  of  ratification.^  In  1903  he 
maintained  a  naval  force  in  the  neighborhood  of  Panama 
pending  the  outcome  of  a  successful  revolution  therein 
against  Colombia,  and  the  result  was  ratified  by  the  treaty 
of  the  following  year  with  Panama  in  which  the  United 
States  promised  to  guarantee  and  maintain  the  indepen- 
dence of  that  republic.^  In  still  other  instances  the  Presi- 
dent has  used  force  in  Latin- American  countries  with  which 
we  had  no  treaty  granting  such  authority,  either  ratified  or 
pending,  and  in  which  American  interests  were  not  di- 
rectly menaced.  If  such  action  may  be  taken  with  refer- 
ence to  countries  with  which  we  have  not  even  a  pending 
treaty,  it  would  seem  to  follow  that  the  President  would  not 
be  disabled  by  the  failure  of  a  pending  treaty  to  receive 
the  Senate's  approval;  although  this  would  be  true  only  in 
the  case  of  those  Latin-American  countries  with  which,  ^s 
already  pointed  out,  we  have  special  and  peculiar  relations. 
The  power  of  intervention  and  of  police  supervision  which 
the  Presidents  have  developed  places  upon  them  a  heavy 
responsibility  for  the  maintenance  of  peace  and  the  ad- 
justment of  international  complications. 

REFERENCES 

Borchard,  E.  M.,  Diplomatic  Protection  of  Citizens  Abroad  (New  York, 
1915),  445-459. 

Clark,  J.  R.,  The  Right  to  Protect  Citizens  in  Foreign  Countries  by  Land- 
ing Forces  (Washington,  1912). 

Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 
1917),  131-163. 

Finley,  J.  H.,  and  Sanderson,  J.  F.,  American  Executive  and  Executive 
Methods  (New  York,  1908),  Chap.  XVIII. 

Hodges,  H.  G.,  The  Doctrine  of  Intervention  (Princeton,  1915). 

Moore,  J.  B.,  Digest  of  Int.  Law  (Washington,  1906),  VII,  103-151. 

*  This,  however,  was  a  treaty,  not  of  annexation,  but  of  financial  supervision. 

'  Malloy,  Treaties,  etc.,  II,  1349.  See  C.  L.  Jones,  Caribbean  Interests  of  the 
United  States,  202.  This  is  an  example  of  the  use  of  the  ''big  stick."  The 
landing  of  forces  in  Latin- American  countries  was,  in  several  instances,  justified 
by  President  Roosevelt  under  the  doctrine  of  an  "  international  police  power, ' ' 
which  is  a  positive  interpretation  of  the  Monroe  Doctrine.  Se^  his  message  tQ 
Congress,  For.  Eels,  of  U.  8.,  1904,  p.  xli. 


CHAPTER  XVI 

THE  BEGINNING  OF  WAR 

UNDER  this  head  we  have  to  consider  the  respective 
powers  of  the  President  and  of  Congress  in  con- 
nection with  the  outbreak  of  such  armed  conflicts  between 
the  United  States  and  foreign  powers  as  are  accompanied 
by  a  formal  declaration  of  war  on  our  side  or,  at  all  events, 
are  of  such  a  nature  as  properly  to  be  denominated  wars. 
In  most  countries  the  power  to  declare  war  is  lodged  in 
the  executive,  although  parliamentary  support  is  necessary 
for  the  prosecution  of  hostilities.  The  framers  of  our  Con- 
stitution preferred,  however,  a  different  arrangement. 
They  were  establishing  a  representative  form  of  govern- 
ment, hence  they  deemed  it  better  that  the  power  of  initi- 
ating war,  which  so  profoundly  affects  the  lives  and  for- 
tunes of  the  mass  of  the  people,  should  be  in  the  hands  of 
that  branch  of  the  Government  which  was  conceived  to  be 
most  broadly  representative,  namely,  Congress.  As  Mad- 
ison wrote  at  the  end  of  the  eighteenth  century,  **The  Con- 
stitution supposes  what  the  history  of  all  governments  dem- 
onstrates, that  the  Executive  is  the  branch  of  power  most 
interested  in  war  and  most  prone  to  it.  It  has  accordingly, 
with  studied  care,  vested  the  question  of  war  in  the  Legis- 
lature.'^^ The  decision  was  influenced  also  by  regard  for 
the  principle  of  separation  of  powers,  it  being  deemed  pref- 
erable that  the  declaration  of  war  and  its  prosecution 
should  be  intrusted  to  different  branches  of  the  Govern- 
ment. 

There  was,  it  is  true,  some  difference  of  opinion  in  the 
convention.    Butler  favored  vesting  the  power  of  making 

*  Writings  (Hunt  ed.),  VI,  312. 

294 


THE  BEGINNING  OF  WAR  295 

war  in  the  President,  in  the  confidence  that  he  would  not 
use  it  save  when  the  nation  would  approve.  Gerry,  how- 
ever, averred  that  he  *  *  never  expected  to  hear  in  a  republic 
a  motion  to  empower  the  Executive  alone  to  declare  war/*  ^ 
Mason  also  opposed  giving  the  war  power  to  the  Executive 
on  the  ground  that  he  could  not  be  trusted  with  it;  likewise, 
he  opposed  the  suggestion  of  Pinckney  that  the  Senate 
would  be  the  best  depository,  on  the  ground  that  that  body 
**was  not  so  constructed  as  to  be  entitled  to  it/'  ^  The  pro- 
vision at  first  stood,  *'to  make  war'';  but,  on  motion  of 
Madison  and  Gerry,  this  was  amended  so  as  to  read,  **to 
declare  war,"  thus  *' leaving  to  the  Executive  the  power  to 
repel  sudden  attacks."  Congress  was  to  have  the  power  of 
formally  changing  the  condition  of  the  country  from  peace 
to  war  by  issuing  a  declaration  to  that  effect,  while  the 
President,  as  commander-in-chief,  was  to  conduct  wars  so 
declared  and  to  fend  off  sudden  attacks  by  initiating  de- 
fensive operations. 

As  is  indicated  in  the  preceding  chapter,  there  have  been 
many  occasions  upon  which  the  President  has  found  it 
necessary  to  use  force  in  or  against  foreign  countries  with- 
out a  formal  declaration  of  war  by  Congress ;  and  some  of 
these  actions  have  differed  so  little  from  actual  war  that, 
in  the  material  sense  at  least,  they  can  scarcely  be  distin- 
guished from  it. 

THE  POLICY  OF  ARMED  NEUTRALITY 

In  order  to  protect  our  rights  and  interests  as  a  neutral 
in  the  midst  of  war  between  foreign  nations,  without  tak- 
ing the  extreme  step  of  declaring  war,  we  have  at  times 
essayed  to  adopt  the  policy  of  armed  neutrality.  This  pol- 
icy might,  with  some  show  of  reason,  be  considered  a  form 
of  the  use  of  force  short  of  war.  But,  as  it  has,  in  important 
instances,  failed  to  avert  war,  it  may  appropriately  be  con- 

^  Journal  of  the  Constitutional  Convention  (Hunt  ed.),  H,  188. 
*lbid. 


296  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

sidered  in  the  present  connection.  Such  armed  neutrality- 
is,  in  fact,  scarcely  distinguishable  in  its  incidents  and 
effects  from  qualified,  partial,  or  limited  war.  In  1798,  dur- 
ing our  controversy  with  France  over  neutral  rights.  Presi- 
dent Adams  informed  Congress  that  he  felt  no  longer 
justified  in  continuing  the  instructions  to  collectors  of  cus- 
toms to  restrain  vessels  of  the  United  States  from  sailing 
in  an  armed  condition.^  This  announcement  aroused  some 
controversy  over  the  President's  constitutional  power,^ 
but  Congress  subsequently  passed  several  acts  which  to- 
gether authorized  partial  hostilities  against  France.  Among 
them  was  the  act  of  July  9, 1798,  which  authorized  the  Pres- 
ident to  instruct  the  commanders  of  public  armed  vessels 
of  the  United  States  to  capture  armed  French  vessels,  and 
also  authorized  him  to  issue  special  commissions,  or  letters 
of  marque  and  reprisal,  to  the  owners  of  private  armed 
vessels  of  the  United  States  for  the  same  purpose.^  Thus 
we  resorted  to  partial  hostilities  and  to  privateering  in 
maintaining  our  rights  against  France.  But  there  was  no 
formal  declaration  of  war. 

In  a  case  arising  in  the  Supreme  Court  involving  the 
relations  between  the  United  States  and  France  in  1799, 
Justice  Washington  distinguished  between  a  limited  or  im- 
perfect and  a  general  or  perfect  war,  solemnly  declared. 
He  maintained  that  the  existing  difficulty  with  France  be- 
longed to  the  former  class,  and  that  Congress  did  not 
issue  a  formal  declaration,  because  that  **  might  have  con- 
stituted a  perfect  state  of  war,  which  was  not  intended  by 
the  government. ' '  *     There  is  still  room  for  difference  of 

*  Eichardson,  Mess,  and  Pap.  of  the  Presidents,  I,  265. 
»Cf.  Madison's  Writings,  VI,  313. 

•1  Stat,  at  L.,  578;  reprinted  in  J.  B.  Scott  [ed.],  The  Controversy  over 
Neutral  Bights  Between  the  United  States  and  France,  1797-1800,  65-66.  Cf. 
G.  G.  Wilson,  ** Limited  Use  of  Force,"  Am.  Jour,  of  Internat.  Law,  XI,  384- 
387  (Apr.,  1917). 

*  Baa  V.  Tingy,  4  Dall,  37 ;  Talbot  v.  Seeman,  1  Cranch,  1 ;  J.  B.  Scott,  The 
Controversy  over  Neutral  Bights  Between  the  U.  S.  and  France,  110.  Cf., 
however,  the  opinion  of  Attorney-General  Lee  in  1798  that  there  existed  an 
'^actual  maritime  war  between  the  United  States  and  France."  1  Op.  Att.- 
Gen.,  84,  Aug.  21,  1798. 


THE  BEGINNING  OF  WAR  297 

opinion  as  to  whether  the  measures  taken  against  France 
at  this  time  shall  be  regarded  as  war  or  as  the  use  of  force 
short  of  war. 

Again  in  1917,  when  diplomacy  had  failed  to  secure  re- 
spect for  our  rights  by  Germany,  and  diplomatic  relations 
with  that  country  had  been  severed.  President  Wilson  ap- 
peared before  a  joint  session  of  Congress  and  declared: 
**  Since  it  has  unhappily  proved  impossible  to  safeguard 
our  neutral  rights  by  diplomatic  means  against  the  unwar- 
ranted infringements  they  are  suffering  at  the  hands  of 
Germany,  there  may  be  no  recourse  but  to  armed  neutrality, 
which  we  shall  know  how  to  maintain  and  for  which  there 
is  abundant  American  precedent/'^  To  meet  these  cir- 
cumstances, the  President  requested  Congress  to  author- 
ize him  **to  supply  our  merchant  ships  with  defensive 
arms  and  with  the  means  of  using  them  and  to  employ  any 
other  instrumentalities  or  methods  that  may  be  necessary 
and  adequate  to  protect  our  ships  and  our  people  in  their 
legitimate  and  peaceful  pursuits  on  the  seas.'*  ^  As  show- 
ing his  attitude  toward  the  question  of  legal  power  in- 
volved, the  President  added :  *  *  No  doubt  I  already  possess 
that  authority  without  special  warrant  of  law,  by  the  plain 
implication  of  my  constitutional  duties  and  powers;  but  I 
prefer,  in  the  present  circumstances,  not  to  act  upon  gen- 
eral implication.  I  wish  to  feel  that  the  authority  and  the 
power  of  the  Congress  are  behind  me  in  whatever  it  may 
become  necessary  for  me  to  do.  We  are  jointly  the  serv- 
ants of  the  people  and  must  act  together  and  in  their  spirit, 
so  far  as  we  can  divine  and  interpret  it."  ^ 

A  bill  was  thereupon  introduced  in  the  House  of  Eep- 
resentatives  with  a  view  to  granting  the  President  the  de- 
sired authority.  It  passed  in  that  body,  but  failed  in  the 
Senate  on  account  of  a  filibuster  carried  out  just  prior  to 

*  Cong.  Record,  February  26,  1917,  vol.  54,  p.  4273. 
•Ihid. 


k 


S 


298  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  termination  of  the  session  by  constitutional  limitation. 
It  was  opposed  in  both  branches  on  the  ground  that  it  un- 
dertook to  transfer  and  delegate  to  the  President  the  war 
power  of  Congress.^  In  view  of  the  fact,  however,  that 
the  President,  as  commander-in-chief  of  the  navy,  could 
have  directed  our  war-ships  to  convoy  our  merchant  ships 
along  the  lanes  of  high  sea  travel,  and  to  protect  them 
against  unlawful  attack,  the  objection  of  unconstitution- 
ality seems  ill-founded.^  That  the  President  himself  held 
this  view  is  evidenced  by  his  action  in  carrying  out  the 
proposed  arming  of  merchant  ships  in  spite  of  the  failure 
of  Congress  to  pass  the  bill.  Armed  neutrality  did  not  in 
this  case  avert  war.  But  it  failed,  not  through  any  choice 
on  our  part,  but  on  account  of  the  fact  that  war  was  thrust 
upon  us  by  the  German  government. 

CLASSIFICATION  OP  ABMED  CONFLICTS 

Some  authorities  enumerate  eight  foreign  wars  to  which 
the  United  States  has  been  a  party  since  the  adoption  of 
the  Constitution,  including  the  difficulties  with  France  and 
the  Barbary  states  in  which  formal  declarations  of  war 
were  not  issued  by  Congress.^  Other  writers  are  inclined 
to  classify  our  conflict  with  France  as  the  adoption  of 
forcible  measures  short  of  war.^  It  is  evident  that  the  dis- 
tinction between  those  conflicts  which  may  be  properly 

»Cong.  Eecord,  64th  Cong.,  2d  sess.,  pp.  4637-8,  4652,  4772-3,  4878. 

'  The  question  might,  however,  have  been  raised  whether  the  project  to  arm 
our  merchant  vessels  did  not  virtually  amount  to  privateering.  The  power  to 
grant  letters  of  marque  and  reprisal  is,  by  the  Constitution,  specifically  lodged 
in  Congress,  and  in  1835  the  Senate  committee  on  foreign  relations  was  not 
satisfied  that  the  power  could  be  delegated  to  the  President.  (Moore,  Digest 
of  Internat.  Law,  VII,  127.)  Privateering,  it  is  true,  was  abolished  by  the 
Declaration  of  Paris  in  1856;  but  the  United  States  was  not  a  party  to  this 
Declaration,  although  it  has  since  conformed  its  conduct  to  it. 

*S.  E.  Baldwin,  "The  Share  of  the.  President  in  a  Declaration  of  War,'' 
Am.  Jour,  of  Internat.  Law,  XII,  2  (Jau.,  1918)  :  cf.  Moore,  Digest  of  Internat. 
Law,  VII,  168. 

*Stowell  and  Munro,  International  Cases,  II,  3-7;  Webster's  Works,  IV, 
163-5;  and  Gray  v,  U.  S.,  21  Ct.  CI.,  340,  cited  in  Moore,  Digest  of  Internat. 
Law,  VII,  158. 


THE  BEGINNING  OP  WAR  299 

termed  wars  and  those  which  fall  short  of  war  is  not  sharp; 
some  conflicts  fall  on  the  border  line,  so  that  there  may  be 
a  difference  of  opinion  as  to  their  true  nature.  The  land- 
ing of  American  troops  at  Vera  Cruz  in  1914  is  not  com- 
monly considered  as  constituting  a  war,  although  the  Mex- 
ican foreign  minister  handed  our  charge  d^affcdres  his  pass- 
ports with  a  note  stating  that  **  according  to  international 
law,  the  acts  of  the  armed  forces  of  the  United  States  .  .  . 
must  be  considered  as  an  initiation  of  war  against  Mex- 
ico.''^  War  against  Mexico,  however,  was  not  intended 
by  our  Government,  the  sole  object  being  reprisals.  Nor 
did  we  intend  war  against  China  when  we  sent  an  armed 
expedition  to  Peking  in  1900,  although  that  undertaking 
had  many  of  the  outward  marks  of  war  in  the  material 
sense,  and  the  period  was  held  by  a  lower  federal  court 
to  constitute  a  **time  of  war,*'  within  the  meaning  of  the 
article  of  war  providing  for  the  trial  by  military  court- 
martial  of  certain  offenses  committed  by  soldiers  in  time 
of  war.2  ^g  ^g^g  stated  by  the  Court  of  Claims  in  1909, 
**  while  reprisals  are  acts  of  war  in  fact,  it  is  for  the  state 
affected  to  determine  for  itself  whether  the  relation  of 
actual  war  was  intended  by  them. ' '  ^  Any  exclusive  list, 
therefore,  of  wars  waged  by  the  United  States  against  for- 
eign states  will  be  somewhat  arbitrary.  For  present  pur- 
poses, it  will  sufi&ce  to  include  in  such  a  list  our  conflicts 
with  France,  Tripoli,  Algiers,  Great  Britain,  Mexico,  Spain, 
and  Germany  and  Austria-Hungary. 

THE  PROCESS  OF  DECLARING  WAR 

It  has  been  pointed  out  that  there  are  *^  three  stages  in 
proceedings  for  declaring  war  by  the  United  States.    The 

^American  Year  Book,  1911,  jv  35. 

*  Hamilton  v.  McClaughry,  136  Fed.,  445. 

•  The  Schooner  Endeavor,  44  Ct.  CI.,  242,  quoted  by  G.  G.  Wilson  in  Am.  Jour, 
of  Internat.  Law,  XI,  387  (Ajv:.,  1917).  Cf.  the  statement  of  President  Wilson 
that  the  expedition  into  Mexico  after  the  Columbus  raid  of  1916  was  under- 
taken *  *  in  entirely  friendly  aid  of  the  constituted  authorities  of  Mexico, ' '  Am. 
Jour,  of  Internat.  Law,  X,  Supp.,  184  (Apr.,  1916). 


300  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

first  comes  with  the  doings  of  the  President  in  informing 
Congress  of  the  state  of  onr  relations  with  the  power 
against  which  war  may  be  declared.  The  second  is  the 
doings  of  Congress  in  making  the  declaration,  and  the  third 
is  the  approval  of  the  declaration  by  the  President. ' '  ^  We 
may  consider  each  of  these  in  turn. 

The  power  of  changing  the  condition  of  the  country  from 
peace  to  war  by  formal  declaration  rests,  under  the  Consti- 
tution, with  Congress.  But  an  intelligent  decision  upon  a 
policy  of  peace  or  war  requires  information  and  touch  with 
foreign  affairs  and  relations,  such  as  the  President,  as  the 
officer  of  the  government  charged  with  the  conduct  of  for- 
eign intercourse,  will  be  more  likely  to  have  than  will  Con- 
gress. Indeed,  as  our  points  of  contact  with  other  nations 
become  more  numerous,  the  President  necessarily  takes 
over,  in  an  increasing  degree,  control  over  the  determina- 
tion of  war  or  peace,  in  spite  of  the  legal  conferment  of 
this  power  by  the  Constitution  upon  Congress. 

Interesting  light  of  an  almost  contemporaneous  charac- 
ter is  thrown  upon  the  meaning  to  be  attached  to  the  con- 
stitutional provision  concerning  the  declaration  of  war 
by  the  debates  which  took  place  in  Congress  in  1798  in  con- 
nection with  our  relations  with  France,  then  closely  ap- 
proaching war.  In  March  of  that  year.  President  Adams 
informed  Congress  that  dispatches  which  he  had  received 
indicated  that  the  objects  of  the  mission  to  France — ordi- 
narily known  as  the  **XYZ''  mission — could  not  be  accom- 
plished on  terms  compatible  with  the  safety,  honor,  or 
essential  interests  of  the  nation.  He  therefore  recom- 
mended that  Congress  adopt  measures  of  defense  and,  as 
indicated  above,  informed  that  body  that  he  had  withdrawn 
the  instructions  to  collectors  to  restrain  vessels  of  the 
United  States  from  sailing  under  arms.^ 

This  message  was  regarded  by  many  members  of  Con- 

*S.  E.  Baldwin,  in  Am.  Jour,  of  Intemat.  Law,  XII,  10  (Jan.,  1918). 
*  Richardson,  Mess,  and  Pap.  of  the  Presidents,  I,  264-5. 


THE  BEGINNING  OF  WAR  301 

gress  as  directly  pointing  to  war,  and  it  led  to  the  introduc- 
tion in  the  House  of  Representatives  of  two  resolutions, 
one  opposing  war  and  the  other  requesting  further  in- 
formation. The  first  resolution  declared  that  **  under  ex- 
isting circumstances,  it  is  not  expedient  for  the  United 
States  to  resort  to  war  against  the  French  Republic,**  and 
that  provision  ought  to  be  made  by  law  for  restricting  the 
arming  of  merchant  vessels,  except  as  previously  per- 
mitted.^ The  last-mentioned  clause  represented  an  attempt 
on  the  part  of  members  who  opposed  the  war  to  take  from 
the  President  one  means  of  engaging  in  warlike  measures 
in  a  way  which  might  bring  on  a  general  war.^  The  first 
clause  was  an  attempt  on  the  part  of  the  same  element  to 
make  an  express  declaration  in  opposition  to  what  was 
deemed  by  many  as  the  President's  evident  inclination 
toward  a  war  with  France.  The  wording  of  the  declaration 
was  based  on  the  idea  that  Congress  not  only  should  be 
*  ^  the  instrument  to  give  the  sound  of  war, ' '  as  one  member 
expressed  it,  but  should  control  the  whole  subject.^  Mr. 
Nicholas  expressed  the  view  that  **  Congress  had  the  power 
over  the  progress  of  what  led  to  war,  as  well  as  the  power 
of  declaring  war,  but  if  the  President  could  take  the  meas- 
ures which  he  had  taken,  with  respect  to  arming  merchant 
vessels,  he,  and  not  Congress,  had  the  power  of  making 
war.*'* 

To  some  it  seemed  superfluous,  if  not  harmful,  for  Con- 
gress to  make  a  negative  declaration.  One  member  put  it 
thus:  **So  long  as  the  Congress  shall  forbear  to  declare 
war,  it  is  a  sufficient  expression  of  their  sentiment  that 
such  a  declaration  would  be  inexpedient:  it  is  the  only 
proper  expression  of  such  a  sentiment.  *  *  ^  In  a  letter  to 
Jefferson,  Madison,  however,  while  admitting  that  such  a 

^  Annals  of  Cong.,  5th  Cong.,  cols.  1319,  1320. 

^In  a  letter  to  Jefferson,  Madison  expressed  the  view  that  **  Congress  ought 
clearly  to  prohibit  arming."     Writings  (Hunt  ed.),  VI,  313. 
•  Annals  of  Cong.,  5th  Cong.,  col.  1321. 
*IUd.,  col.  1324. 
^Ibid.,  col.  1320. 


302  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

negative  declaration  is  ordinarily  ineligible,  argued  that  it 
might  be  proper  in  certain  cases. ^  The  present  negative 
resolution,  however,  failed  to  pass.  It  was  clearly  an  at- 
tempt on  the  part  of  those  members  of  Congress  who  spon- 
sored it  to  restrict  the  President's  power  over  the  beginning 
of  war.  Although  a  formal  declaration  of  war  was  not 
adopted,  it  doubtless  would  have  been  adopted  if  the  Pres- 
ident had  recommended  it,  and  the  failure  of  the  negative 
resolution  is  significant  as  showing -the  strength  of  the 
President's  position. 

The  second  resolution  provided  **that  the  President  be 
requested  to  communicate  to  this  House  the  instructions 
to  and  dispatches  from  the  envoys  extraordinary  of  the 
United  States"  to  France,  mentioned  in  the  President's 
message.^  These  were  the  famous  *^XYZ''  papers,  whose 
contents  bore  directly  upon  the  question  of  peace  or  war 
which  it  was  deemed  the  business  of  Congress  to  decide. 
Members  of  the  House  complained  that  they  were  left  in  the 
dark  as  to  the  contents  of  these  dispatches,  with  the  result 
that  they  lacked  the  information  necessary  to  an  intelligent 
decision.  The  question  involved  was,  in  principle,  similar 
to  that  which  arose  over  the  request  of  the  House  that  the 
President  transmit  the  papers  connected  with  the  Jay 
Treaty  with  a  view  to  assisting  that  body  in  arriving  at  a 
decision  as  to  an  appropriation  for  carrying  the  instrument 
into  effect.  In  both  instances  the  House  was  called  upon 
to  perform  a  constitutional  function  which  it  felt  able  to 
exercise  intelligently  only  if  it  were  put  in  possession  of 
information  which  the  President  alone  could  supply.    In 

*  He  mentions  the  following  eases :  '  *  1.  Wliere  nothing  less  than  a  declara- 
tion of  pacific  intentions  from  the  department  entrusted  with  the  power  of 
war,  will  quiet  the  apprehensions  of  the  constituent  body,  or  remove  an  un- 
certainty which  subjects  one  part  of  them  to  the  speculating  arts  of  another. 
2.  Where  it  may  be  a  necessary  antidote  to  the  hostile  measures  or  language 
of  the  Executive  Department.  ...  3.  Where  public  measures  or  appearances 
may  mislead  another  nation  into  distrust  of  the  real  object  of  them,  the  error 
ought  to  be  corrected;  and  in  our  Government,  where  the  question  of  war  or 
peace  lies  with  Congress,  a  satisfactory  explanation  cannot  issue  from  any 
other  departments."  Writings  (Hunt  ed.),  317-8. 

'  Annals  of  Cong.,  5th  Cong.,  col.  1370. 


THE  BEGINNING  OP  WAR  303 

the  case  of  the  **XYZ*'  papers,  however,  no  definite  obliga- 
tion, in  an  international  sense,  had  been  created  by  another 
organ  of  the  Government  to  adopt  any  particular  course 
of  action.  In  this  case,  moreover,  when  it  appeared  that 
the  resolution  requesting  the  papers  had  passed  the  House 
by  a  substantial  majority,^  the  desired  documents  were 
promptly  transmitted  to  both  branches  by  the  President, 
*  *  omitting  only  some  names  and  a  few  expressions  descrip- 
tive of  the  persons. ' '  ^ 

In  the  House  debate  some  expressions  were  used  to  the 
effect  that  the  body  had  a  constitutional  right  to  demand 
the  papers  and  to  require  their  transmission,  since  other- 
wise its  constitutional  power  of  declaring  war  would  be 
rendered  nugatory.  The  better  view,  however,  was  ex- 
pressed by  Mr.  Gallatin,  who  declared  that  the  House  had 
no  control  over  the  President  in  this  respect.  He  was  in 
favor  of  acting  without  requesting  further  information, 
since  he  did  not  know  *  ^  that  it  would  be  given,  or,  if  given, 
whether  it  would  not  be  in  a  mutilated  state. ' '  ^ 

The  points  involved  in  this  controversy  had  been  consid- 
ered to  some  extent  in  the  debate  between  Hamilton  (**Pa- 
cificus'^)  and  Madison  (^^Helvidius'')  over  Washington's 
proclamation  of  neutrality.  Madison  argued  that,  by  vir- 
tue of  its  power  to  declare  war.  Congress  had  also  the  power 
of  judging  whether  the  United  States  is  obliged  to  declare 
war,  while  the  President  is  excluded  from  the  right  of  so 
judging.  Hamilton  correctly  contended,  however,  that,  even 
though  Congress  may  have  such  a  right  of  judgment,  it 
does  not  follow  that  the  President  *  ^  is  excluded  from  a  sim- 
ilar right  of  judgment  in  the  execution  of  his  own  func- 
tions.''^ The  President,  moreover,  occupies  the  strategic 
position  in  the  matter.  In  case  he  declines  to  transmit  pa- 
pers demanded  by  Congress,  there  is  admittedly  no  way  of 

*  Annals  of  Cong.,  5th  Cong.,  col.  1371. 

*  Eichardson,  Mess,  and  Pap.  of  the  Presidents,  I,  265. 
•Annals  of  Cong.,  5th  Cong.,  col.  1363. 

*  Quoted  in  Corwin,  President's  Control  of  Foreign  Belations,  12,  21. 


304  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

securing  them,  save  by  the  laborious  method  of  impeach- 
ment. Any  attempt  on  the  part  of  Congress  to  secure  from 
the  President  full  infoimation  upon  which  to  base  a  de- 
cision as  to  declaring  war  is  likely  to  encroach  upon  that 
officer's  diplomatic  powers,  e.g.,  those  connected  with  his 
instructions  to  commissioners  and  the  results  of  diplomatic 
negotiations.  Whether  or  not  the  President  will  communi- 
cate such  information  lies  entirely  within  his  discretion,  and 
will  be  determined  in  accordance  with  his  ideas  of  policy 
and  expediency.  The  result  is  that,  in  practice,  the  Presi- 
dent, through  his  control  of  essential  information,  can 
usually  manipulate  the  situation,  if  he  desires,  so  as  to  se- 
cure or  prevent  a  declaration  of  war  by  Congress.^ 

In  the  debate  on  the  armed  neutrality  bill  of  1917,  Senator 
Stone,  after  calling  attention  to  the  disuse  into  which  the 
issuance  of  formal  declarations  of  war  had  fallen,  affirmed 
that  in  order  to  prevent  the  country  from  being  thrust  into 
a  state  of  actual  war  without  any  action  of  Congress  what- 
ever, it  would  be  necessary  for  that  body  to  take  the  posi- 
tion that  **  nothing  can  be  done  to  inaugurate  or  initiate 
war  until  Congress  first  authorizes  it.''^  Senator  Cum- 
mings  argued  in  the  same  strain  when  he  said  that  ^4t  is  for 
Congress  to  determine  the  character  of  an  act  and  to  de- 
clare to  the  world  whether  the  act  is  sufficient  to  bring  on 
war.*'^  These  contentions  were  doubtless  in  accordance 
with  the  constitutional  theory  of  Congressional  participa- 
tion in  war-making.  But  they  ignored  the  practical  aspects 
of  the  matter — aspects  which  were  duly  taken  note  of  by 
Senator  Lodge,  when,  in  the  same  debate,  he  declared  that 
*Hhe  President,  under  his  constitutional  powers,  can,  if 
he  choose,  get  the  country  into  war.  As  Mr.  Webster  said 
on  one  famous   occasion,   ^nobody  declared  the  Mexican 

^  Cf .  Madison 's  statement  in  a  letter  to  Jefferson  in  1798  that  measures  '  *  may 
be  taken  by  the  Executive  that  will  end  in  war,  contrary  to  the  wish  of  the 
body  which  alone  can  declare  it/'     Writings  (Hunt  ed.),  VI,  314. 

^  Cong.  Record,  March  3,  1917,  vol.  54,  p.  4879,  citing  Tucker  on  the  Constitu- 
turn,  II,  577. 

'Ibid.,  p.  4911. 


THE  BEGINNING  OF  WAR  305 

War;  Mr.  Polk  made  it.'  The  President  can  do  that  with- 
out any  resolution  of  Congress/'  ^ 

Warlike  operations  on  a  considerable  scale  are  possible, 
as  we  have  seen,  without  a  declaration  of  war  by  Congress, 
and,  indeed,  without  any  specific  action  whatever  by  that 
body,  as  in  the  case  of  the  Boxer  expedition  of  1900.  The 
only  way  in  which  Congress  could  prevent  operations  of 
this  sort  would  be  by  failing  to  make  any  financial  provision 
for  military  or  naval  armament,  which,  under  existing  con- 
ditions, it  cannot  afford  to  do.  As  long  as  such  armament 
exists,  the  President,  by  virtue  of  his  position  as  com- 
mander-in-chief of  the  army  and  navy,  can  on  occasion  use 
it  to  conduct  operations  which  may  result  in  war.  The 
United  States  may  be  attacked;  and  it  then  becomes  the 
duty  of  the  President  to  recognize  the  state  of  war  and  to 
ward  off  invasion  without  waiting  for  special  legislative 
authorization.  Practically,  the  President  has  the  power  to 
bring  on  a  war  which  may  colorably  be  denominated  de- 
fensive but  which  in  is  reality  aggressive.  The  distinction 
between  defensive  and  offensive  warfare  is,  in  fact,  rather 
illusory. 

Although  there  was  much  opposition,  both  in  Congress 
and  in  the  country,  to  the  Mexican  War — the  war  which 
Webster  declared  that  President  Polk  made — nevertheless  it 
would  seem  that,  technically,  the  President  was  acting 
within  his  legal  and  constitutional  powers  in  the  measures 
which  he  took  in  the  early  stages  of  that  conflict.  Two 
battles,  Palo  Alto  and  Resaca  de  la  Palma,  were  fought  in 
May,  1846,  before  Congress  declared  the  existence  of  a 
state  of  war.  They  took  place  on  territory  north  of  the 
Rio  Grande  which  Mexico  claimed.  By  act  of  the  Texan 
Congress,  passed  in  1836,  this  territory,  however,  belonged 
to  that  state,  which  in  1845  was  incorporated  in  the  United 
States.  Furthermore,  Congress,  in  the  last-mentioned  year, 
gave  its  implied  sanction  to  the  theory  that  our  southwest- 

*  Cong.  Record,  March  2,  1917,  p.  4751. 


306  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

em  border  was  the  Eio  Grande  by  passing  an  act  extending 
the  revenue  laws  of  the  United  States  over  the  territory 
north  of  that  river.  Under  these  circumstances,  it  would 
seem  fairly  clear  that  the  President  was  not  acting  ultra 
vires  in  defending  the  territory  in  dispute  from  invasion, 
and  that  he  might  well  have  been  accused  of  neglect  of 
duty  if  he  had  not  done  so.  Nevertheless,  it  is  doubtless 
true  that  he  was  not  averse  to  war;  he  may  even  be  re- 
garded as  having  manipulated  the  situation  so  as  to  bring 
on  hostilities.^ 

Not  only  through  his  military  powers,  but  also  through 
the  exercise  of  his  diplomatic  functions,  the  President  may 
bring  about  a  situation  leading  directly  to  war.  Thus  in 
the  conduct  of  diplomatic  negotiations  he  may  insist  not 
only  firmly  but  aggressively  upon  what  he  conceives  to  be 
our  national  rights,  as  in  the  case  of  the  disputed  interpre- 
tation of  a  treaty,  and  may  decline  to  submit  the  dispute 
to  arbitration.  He  may  bring  on  a  diplomatic  impasse  by 
sending  an  ultimatum  to  a  foreign  government  with  which 
we  are  in  disagreement,  and  he  may  sever  diplomatic  rela- 
tions with  such  a  government  altogether,  a  step  which  is  a 
frequent  preliminary  of  war.^  Moreover,  through  his  power 
to  receive  diplomatic  envoys  he  may  recognize  the  bellig- 
erency or  independence  of  the  revolting  colonies  of  a  gov- 
ernment with  which  we  are  at  peace,  thus  furnishing  to 
that  government  a  casus  belli.  And  if,  through  any  of  these 
means,  he  precipitates  hostilities  with  another  power,  Con- 
gress cannot  afford  to  refuse  support,  even  though  it  feels 
that  a  less  aggressive  diplomatic  policy  would  have  averted 
the  conflict  altogether.  In  the  case  of  the  Mexican  War,  as. 
previously  indicated,  the  President's  policy  was  vigorously 

*For  the  debate  in  Congress  on  the  President's  policy,  see  Benton,  Abridg- 
ment, XV,  489-504,  and  compare  Reeves,  American  Diplomacy  under  Tyler  and 
Polk,  272-298. 

'Thus,  diplomatic  intercourse  with  Mexico  was  suspended  for  more  than  a 
year  and  with  Germany  for  about  two  months  before  the  outbreak  of  war  with 
those  countries. 


THE  BEGINNING  OF  WAR  307 

opposed  in  Congress,  especially  by  the  Whigs ;  but  very  few 
members  withheld  their  support  from  its  prosecution.^ 

By  virtue  of  the  President's  constitutional  authority  to 
convey  to  Congress  information  on  the  state  of  the  Union 
and  to  recommend  to  that  body  the  consideration  of  such 
measures  as  he  shall  judge  necessary  and  expedient,  it  be- 
comes his  duty  to  recommend  that  Congress  take  appropri- 
ate action  whenever  our  relations  with  another  power  be- 
come such  that  diplomatic  means  are  no  longer  adequate 
to  maintain  our  international  rights  and  national  honor. 
If  during  a  recess  of  Congress  the  situation  becomes  so 
acute  as  not  to  admit  of  delay,  it  is  his  duty  to  call  a  special 
session;  although  this  has  been  found  necessary  only  in 
the  case  of  the  war  with  Germany. 

The  extreme  view  of  the  extent  of  Congressional  power 
over  the  beginning  of  war  was  thus  expressed  by  Senator 
Bacon  in  his  debate  with  Senator  Spooner  in  1906:  **The 
President  not  only  cannot  declare  war,  and  it  is  not  only 
conferred  in  terms  upon  Congress,  but  even  if  the  Presi- 
dent should  be  opposed  to  a  proposed  war,  two-thirds  of 
each  branch  can  declare  war.  It  would  not  require  his  ap- 
proval. There  is  the  most  important  of  all  foreign  rela- 
tions.   It  does  not  belong  to  the  President.''^ 

This  is  theoretically  true,  but  the  practical  facts  are 
diametrically  the  opposite.  It  may  be  accepted  as  an  estab- 
lished ''convention'*  of  the  Constitution  that,  although 
Congress  has  full  legal  power  to  declare  war  without  regard 
to  the  President's  wishes,  and  may  even  pass  such  declara- 
tion over  his  veto  by  a  two-thirds  vote  as  in  the  case  of  any 
other  act,  nevertheless  it  will  not  pass  such  an  act  in  the 
first  place  unless  assured  of  the  support  and  approval  of 
the  President  as  indicated  by  his  express  or  virtual  recom- 

*  On  January  3,  1848,  however,  a  joint  resolution  passed  the  House  of  Rep- 
resentatives by  the  close  vote  of  85  to  81  declaring  that  the  Mexican  War  had 
been  ''unnecessarily  and  unconstitutionally  begun  by  the  President."  Cong. 
Globe,  30th  Cong.,  1st  sess.,  p.  95.  An  attempt  on  February  14  of  the  same 
year  to  rescind  this  resolution  was  defeated  by  105  to  94.     Ibid.,  344. 

'  Quoted  in  Corwin,  President 's  Control  of  Foreign  Eelations,  191. 


308  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

mendation  that  such  a  declaration  be  issued.  The  President 
has  control  of  diplomatic  intercourse  and  of  the  sources  of 
official  information  regarding  foreign  relations.  Congress 
has  nothing  of  the  sort.  Moreover,  Congress  is  dependent 
upon  the  President,  as  commander-in-chief,  to  prosecute 
any  war  that  it  may  declare.  Hence,  the  power  of  that  body 
to  declare  war  can  be  correctly  appraised  only  when  con- 
sidered in  connection  with  the  President 's  powers  touching 
the  beginning  of  war.  These  latter  powers  are  both  posi- 
tive and  negative.  Positively,  the  President  may,  through 
the  exercise  of  his  diplomatic  and  executive  powers,  bring 
on  a  situation  such  that  Congress,  even  against  its  wishes, 
will  be  practically  compelled  to  support  his  war  policy. 
Negatively,  he  may  prevent  a  declaration  of  war  by  Con- 
gress by  declining  to  recommend  or  approve  it. 

On  the  other  hand,  it  is  true  that  Congress,  if  inclined  to 
war,  may  bring  such  pressure  to  bear  on  a  President  de- 
sirous of  avoiding  war  as  practically  to  force  his  hand. 
Thus,  prior  to  our  entrance  into  the  war  of  1812  with  Great 
Britain  a  group  of  men  in  Congress,  known  as  the  **war 
hawks, '*  agitated  in  favor  of  war,  and  as  a  result  of  their 
efforts  acts  were  passed  tending  to  put  the  country  in  a 
state  of  preparation  for  the  contemplated  hostilities.^ 
President  Madison  was  averse  to  war,  although  resentful  of 
the  aggressive  acts  of  Great  Britain  against  our  ships  and 
commerce.  On  April  1,  1812,  he  recommended  to  Congress 
that  a  general  embargo  be  laid  on  all  vessels  then  in  port, 
and  two  months  later  he  sent  in  a  message  enumerating 
our  grievances.^  The  tone  of  the  message  suggested  war, 
although  the  President  did  not  expressly  recommend  a  dec- 
laration of  war,  but  rather  only  that  Congress  give  its 

*If,  as  has  often  been  argued,  the  mere  existence  of  large  armaments  is  a 
potent  cause  of  war,  then,  to  that  extent.  Congress  may  greatly  assist  in 
bringing  on  war  by  providing  such  armament. 

'With  regard  to  Congressional  pressure  on  President  Madison,  it  is  to  be 
remembered  that  this  could  be  the  more  easily  exerted  in  1812,  since  the 
President  was  dependent  for  his  renomination  upon  the  action  of  the  Congres- 
(Sional  caucus, 


THE  BEGINNING  OF  WAR  309 

consideration  to  the  question.  ** Whether/'  he  said,  *'the 
United  States  shall  continue  passive  under  these  .  .  .  accu- 
mulating wrongs  * '  or  oppose  *  *  force  to  force  in  defense  of 
their  national  rights  ...  is  a  solemn  question  which  the 
Constitution  wisely  confides  to  the  legislative  department 
of  the  Government. ' '  ^  In  other  cases,  however,  where  Con- 
gress has  formally  declared  war,  the  President  has  taken 
a  more  positive  stand  and  has  expressly  recommended  such 
a  declaration.  It  may  be  said,  therefore,  that  Congress  has 
never  declared  war  except  in  pursuance  of  the  express  or 
implied  recommendation  of  the  President,  and  with  the 
assurance  of  his  support  and  approval.  It  is  not  to  be 
inferred,  however,  that  the  constitutional  ** convention'' 
whereby  the  President  takes  the  initiative  in  recommend- 
ing a  declaration  of  war  has  deprived  Congress  of  all  judg- 
ment and  discretion  in  the  matter,  or  should  be  permitted 
to  do  so. 

In  the  debate  on  the  armed  neutrality  bill  of  1917  Senator 
Stone  declared  that  **  Congress  only  can  constitutionally 
pass  upon  the  sufficiency  of  a  cause  of  war. ' '  ^  However 
true  this  may  be  from  the  theoretical  point  of  view,  the 
practical  fact  is  that  the  President,  through  his  initiative 
in  recommending  war,  passes  in  the  first  instance  upon  the 
sufficiency  of  the  cause,  subject  to  the  approval  of  Congress. 
Usually  the  causes  of  war  are  well  known  to  the  public; 
and  of  course  the  President  and  Congress  require  the  sup- 
port of  public  opinion  in  such  an  emergency  as  may  lead 
to  war.  The  President,  however,  as  we  have  seen,  is  in 
control  of  the  sources  of  official  information  and  may  have 
facts  in  his  possession  which  are  not  generally  known.  It 
is  customary  for  him,  especially  when  he  is  in  harmony 
politically  with  the  majority  of  Congress,  to  keep  that 
body,  or  at  least  the  chairmen  of  the  Committees  on  For- 
eign  Eelations    and    Foreign   Affairs,   informed   of   any 

*  Eichardson,  Mess,  and  Pap.  of  the  Presidents,  I,  504-5. 

*  Cong.  Eecord,  March  3,  1917,  vol,  54,  p.  4880. 


310  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

developments  of  a  threatening  nature  which  may  require 
the  action  of  Congress.  When  the  moment  arrives  at  which 
he  deems  that  the  resources  of  diplomacy  in  settling  an 
international  difference  have  been  exhausted  and  that  the 
peace  and  the  honor  of  the  country  cannot  both  be  longer 
preserved,  it  is  his  duty  to  transmit  to  Congress  such  infor- 
mation regarding  the  state  of  our  foreign  relations  as  may 
enable  that  body  to  form  an  intelligent  judgment  upon 
the  nature  of  our  grievances  and  their  sufficiency  as  ground 
for  a  declaration  of  war. 

THE   SPECIFICATION   OF   CAUSES 

It  has  been  customary  for  Presidents  to  inform  Congress 
concerning  developments  of  a  threatening  nature,  not  only 
in  the  final  message  recommending  a  declaration  of  war,  but 
also  during  the  preliminary  stages  of  the  controversy. 
Thus  on  March  9,  1812,  more  than  three  months  before  the 
actual  declaration  of  war.  President  Madison  communicated 
to  Congress  certain  documents  tending  to  show  that  Great 
Britain,  while  professing  friendship  for  us  through  her 
public  minister  at  Washington,  was  maintaining  a  secret 
agent  in  this  country  to  foment  disaffection  toward  the  con- 
stituted authorities.^  Again,  on  April  19,  1916,  almost  a 
year  before  Congress  declared  a  state  of  war  with  Germany, 
President  Wilson  delivered  an  address  before  the  two 
houses  in  which  he  recounted  the  notorious  submarine  out- 
rages for  which  Germany  was  responsible,  notably  the 
Sussex  affair,  and  informed  Congress  of  his  intention  to 
sever  diplomatic  relations  with  the  Imperial  Government 
altogether  unless  it  promised  and  effected  an  immediate 
abandonment  of  its  methods  of  warfare.  More  than  a 
month,  also,  before  the  declaration.  Congress — as  well  as 
the  world  at  large — was  informed  by  the  State  Department 
of  the  contents  of  the  astonishing  Zimmermann  note,  pro- 

*  Richardson,  Mess,  and  Pap.  of  the  Presidents,  I,  498. 


THE  BEGINNING  OF  WAR  311 

posing  an  alliance  of  Germany,  Mexico,  and  Japan  against 
the  United  States. 

The  official  statement  of  the  causes  of  war,  however,  is 
usually  found  in  the  message  in  which  the  President  recom- 
mends to  Congress  the  passage  of  a  formal  declaration. 
Thus  in  his  address  to  Congress  on  April  2, 1917,  President 
Wilson  recounted  the  grievances  of  the  United  States 
against  Germany — the  sinking  of  American  ships,  the  de- 
struction of  American  lives,  the  sending  of  spies  and 
intriguers  among  us,  and  other  hostile  acts.  In  addition 
to  this  enumeration,  he  spoke  of  certain  great  objects  for 
which  we  should  fight,  e.^.,  *'the  rights  of  nations  great 
and  small  and  the  privileges  of  men  everywhere  to  choose 
their  way  of  life  and  of  obedience,  *'  and  **to  make  the  world 
safe  for  democracy.''  Thus,  in  addition  to  defending  our 
own  international  rights,  which  had  been  violated  by  Ger- 
many, we  were  to  exert  our  might  as  the  champion  of 
humanity  and  of  the  rights  of  men  everywhere.  This  was 
a  large  undertaking,  and  although  the  President  assumed 
to  speak  for  the  Government  and  for  the  entire  nation, 
Congress  did  not  go  so  far.  The  joint  resolution  of  April 
6,  1917,  passed  in  pursuance  of  the  President's  recommen- 
dation and  declaring  the  existence  of  a  state  of  war  with 
Germany,  provided  merely  that  **  whereas  the  Imperial 
German  Government  has  committed  repeated  acts  of  war 
against  the  Government  and  people  of  the  United  States: 
therefore,  be  it  resolved,  that  the  state  of  war  between  the 
United  States  and  Germany  which  has  thus  been  thrust 
upon  the  United  States  is  hereby  formally  declared,"  etc.^ 
Nothing  was  said  about  fighting  for  democracy  or  the  rights 
of  humanity.  It  may  be  noted  also  that  the  report  of  the 
House  Committee  on  Foreign  Affairs,  although  enumer- 
ating a  long  list  of  grievances  against  Germany,  did  not 
base  its  recommendation  on  the  broader  reasons  assigned  by 

*40  U.  S.  Stat,  at  L.,  1.  The  joint  resolution  of  December  7,  1917,  declaring 
a  state  of  war  with  Austria-Hungary  used  substantially  the  same  phraseology. 
40  Stat,  at  L.,  429. 


312  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  President.^  It  may  be  argued  that  Congress  gave  its 
tacit  consent  to  these  broader  reasons.  It  hardly  seems, 
however,  that  it  was  necessarily  committed  to  them.  At 
all  events,  at  a  time  when  undivided  counsels  and  the  utmost 
cooperation  were  eminently  desirable,  it  neither  affirmed 
nor  denied  them.^ 

The  issuance  of  a  formal  declaration  of  war  has  not 
commonly  been  considered  necessary  in  international  law, 
and  in  practice  many  wars  have  been  begun  without  a 
declaration.  Under  a  provision  of  the  Hague  Convention 
of  1907,  however,  which  the  United  States  ratified,  it  was 
agreed  that  hostilities  ^^must  not  commence  without  previ- 
ous and  explicit  warning  in  the  form  either  of  a  reasoned 
(motivee)  declaration  of  war  or  of  an  ultimatum  with  con- 
ditional declaration  of  war. '  ^  ^  In  the  two  instances  of  a 
declaration  of  war  by  Congress  since  the  ratification  of  the 
Hague  Convention,  the  statement  of  reasons  contained  in 
the  formal  declaration  is  so  general  as  hardly  to  comply, 
apparently,  with  these  requirements.  In  both  cases,  how- 
ever, war  had  already  been  thrust  upon  us  by  the  Central 
Powers,  so  that  no  element  of  surprise  was  involved;  and, 
in  view  of  the  statement  of  facts  in  the  President's  address 
and  in  the  report  of  the  Congressional  Committee,  no  fur- 
ther elaboration  in  the  formal  declaration  seemed  neces- 

*See  synopsis  of  this  report  in  Am.  Jour,  of  Intemat.  Law,  XI,  623-6  (July, 
1917). 

'In  regard  to  the  grounds  upon  which  Congress  declared  war,  compare  the 
following  colloquy  which  occurred  in  the  Senate  on  May  13,  1920: 

"ME.  BRANDEGrEE.  Instead  of  entering  the  war  on  broad  principles  of 
altruism  and  of  service  to  humanity,  were  we  not  month  after  month  alleged 
to  be  waiting  for  the  Germans  to  perform  an  overt  act  against  us?  Was  not 
that  the  daily  suggestion  in  the  newspapers  that  at  last,  perhaps,  an  overt  act 
would  be  committed? 

* '  MR.  THOMAS.  That  is  absolutely  true.  It  was  the  attitude  of  my  party, 
whose  declarations  at  St.  Louis  were  to  that  effect,  and  while  in  connection 
therewith  we  announced  our  purposes  and  our  lofty  intentions  toward  all  the 
world,  including  our  enemies,  the  fact  remains  that  the  people  of  the  United 
States  responded  to  the  war  because  of  the  outrages  inflicted  upon  their  fellow 
citizens,  which  demonstrated  the  need  for  war  if  we  were  to  preserve  our 
country  from  a  foreign  invader,  sure  to  come,  once  he  had  broken  down  the 
barriers  of  an  intervening  ocean. ' '    Cong.  Record,  May  13,  1920,  p.  7590. 

'  J.  B.  Scott,  Texts  of  the  Peace  Conferences  at  the  Hague,  199. 


THE  BEGINNING  OF  WAR  813 

sary.  In  declarations  of  war  issued  prior  to  the  adoption 
of  the  Hague  Convention,  Congress  was  usually  even  more 
reticent  concerning  the  precise  reasons  for  the  action  taken.^ 
The  joint  resolution  of  April  20,  1898,  however,  although 
in  form  an  ultimatum  demanding,  among  other  things,  the 
withdrawal  of  Spain  from  Cuba,  was  virtually  a  declara- 
tion of  war,  and  it  contained  in  its  preamble  a  reference 
to  the  ** abhorrent  conditions''  existing  in  Cuba,  ** cul- 
minating in  the  destruction  of  a  United  States  battleship 
\_Maine]  with  266  of  its  officers  and  crew  and  cannot  be 
longer  endured,  as  has  been  set  forth  by  the  President  in 
his  message  to  Congress  of  April  11th,  upon  which  the 
action  of  Congress  was  invited. ' '  ^  The  formal  declaration 
embodied  in  an  act  of  April  25th,  merely  declared  the  ex- 
istence of  a  state  of  war  since  the  21st,  inclusive,  without 
specifying  any  farther  reasons  or  causes.^  Meanwhile,  on 
the  22nd,  the  President  had  issued  a  proclamation  declaring 
a  blockade  of  the  northern  coast  of  Cuba,*  which  may  be 
regarded  as  virtually  a  presidential  declaration  of  war, 
issued  prior  to  the  formal  declaration  by  Congress. 

The  Hague  convention  of  1907,  quoted  above,  represented 
an  attempt  of  the  treaty  power  to  exercise  some  control 
over  the  war  power.  Although  as  a  party  to  that  con- 
vention the  United  States  assumed  an  obligation,  in  an  in- 
ternational sense,  to  comply  with  its  terms.  Congress  is  not 
thereby  bound,  in  a  constitutional  sense,  to  state  the  reasons 
for  a  declaration  of  war;  in  conferring  on  Congress  the 
power  to  declare  war,  the  Constitution  does  not  require 
that  the  declaration  shall  be  accompanied  by  reasons.*^  It 
is  a  fair  inference  from  the  Constitution's  language  that 

*See  Act  of  June  18,  1812,  2  Stat,  at  L.,  755;    act  of  May  13,  1846,  9 
ibid.,  9 ;    act  of  April  25,  1898,  30  ibid.,  364. 
'  30  U.  S.  Stat,  at  L.,  738. 

•  Ibid.,  364. 

*  Ibid.,  1769. 

'It  is  true  that  internatiomal  law,  which  requires  that  treaties  duly  made 
shall  be  faithfully  observed,  has  been  held  to  be  to  some  extent  a  part  of  our 
law  {The  Paquette  Eabana,  175  U.  S.,  677).  But  this  would  hardly  be  held 
to  be  so  far  true  as  to  limit  the  constitutional  discretion  of  Congress. 


314  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

reasons  may  be  stated  in  the  declaration.  But  whether  this 
shall  be  done  is,  constitutionally,  for  Congress  to  determine, 
and  this  discretion  cannot  be  taken  away  or  restricted  by 
treaty.  The  American  delegation  to  the  Hague  Conference 
pointed  out  that  Congress,  under  the  Constitution,  has 
exclusive  power  to  declare  war,  and  that  such  power  is  ^^not 
susceptible  of  regulation  or  modification  by  law  or  treaty,'^  ^ 
although  no  express  reservation  to  this  effect  was  included 
by  the  United  States  in  the  act  of  ratification.  Certain 
articles  of  the  Covenant  of  the  League  of  Nations,  if  rati- 
fied by  the  United  States,  might  also  place  this  country,  in 
an  international  sense,  under  an  obligation  to  go  to  war  in 
case  certain  circumstances  arose.  In  the  constitutional 
sense,  however.  Congress  would  not  thereby  be  obliged  to 
declare  war,  since  the  treaty  power  is  incapable  of  limiting 
that  body's  constitutional  discretion  in  the  matter. 

Congress  has  uniformly  worded  its  declarations  of  war 
in  such  a  way  as  to  imply  that  war  already  existed  at  the 
time  of  the  issuance  of  the  declaration,  rather  than  that 
it  was  to  begin  upon  such  issuance.  This  is  notably  illus- 
trated in  the  declaration  of  war  against  Mexico,  which  was 
entitled  ^ '  an  act  providing  for  the  prosecution  of  the  exist- 
ing war ' '  between  the  United  States  and  Mexico,  and  which, 
in  a  preamble,  recited  that  ''by  the  act  of  the  Eepublic  of 
Mexico,  a  state  of  war  exists  between  that  Government  and 
the  United  States. ' '  ^  Speaking  strictly,  this  action  might 
be  more  properly  characterized  as  a  Congressional  recog- 
nition of  a  state  of  war  than  as  a  formal  declaration  of  war. 
In  fact,  as  Judge  Baldwin  points  out,  a  motion  in  the 
House  of  Eepresentatives  for  a  declaration  of  war  was 
rejected  by  a  large  majority.^  It  was,  however,  possible 
to  muster  a  majority  to  support  the  President  in  a  war 
already  going  on,  even  though  many  members  believed  that 
the  conflict  had  been  begun  by  the  President  while  acting  in 

^  Am.  Jour,  of  Intemat.  Law,  II,  65. 

«  9  U.  S.Stat,  at  L.,  9. 

"  Am.  Jour,  of  Intemat.  Law,  XII,  2. 


THE  BEGINNING  OF  WAR  315 

e^ess  of  his  powers.  A  resolution  to  this  latter  effect  was, 
as  we  have  seen,  adopted  by  the  House  during  the  next 
session.^ 

In  the  case  of  our  wars  with  Tripoli  and  Algiers,  there 
were  also  Congressional  recognitions  of  a  state  of  war,  al- 
though, as  already  indicated,  no  formal  declarations  of 
war  were  issued.  In  1801  Tripoli  declared  war  against 
the  United  States,  and  President  Jefferson,  as  we  have  seen, 
sent  a  small  squadron  of  frigates  into  the  Mediterranean, 
without  Congressional  authorization,  with  orders  to  pro- 
tect our  commerce  against  the  threatened  attack.^  On  Feb- 
ruary 6,  1802,  Congress  passed  an  act  which,  after  reciting 
that  ^*the  regency  of  Tripoli,  on  the  coast  of  Barbary,  has 
commenced  a  predatory  warfare  against  the  United 
States,''  provided  that  **it  shall  be  lawful  for  the  President 
to  instruct  the  commanders  of  the  armed  vessels  of  the 
United  States  to  subdue,  seize  and  make  prize  of  all  vessels, 
goods  and  effects  belonging  to  the  Bey  of  Tripoli,  or  to 
his  subjects  .  .  .  and  also  cause  to  be  done  all  such  other 
acts  of  precaution  or  hostility  as  the  state  of  war  will  jus- 
tify and  may  in  his  opinion  require. ' '  ^  The  act  also  author- 
ized privateering,  or  the  granting  of  letters  of  marque  and 
reprisal  to  owners  of  private  armed  vessels.  An  act  of 
March  3,  1815,  with  reference  to  the  Bey  of  Algiers  was  of 
a  similar  tenor.^  As  Secretary  Fish  later  pointed  out,  these 
measures  constituted  virtual  declarations  of  war.^ 


PRESIDENTIAL  APPROVAL  OP  DECLARATIONS  OP   WAR 

The  final  stage  in  the  process  of  declaring  war,  as  in 
making  a  treaty,  is  normally  in  the  hands  of  the  President. 
The  Congressional  declaration  is  sometimes  in  the  form  of 

*  Cong.  Globe,  30th  Cong.,  1st  sess.,  Jan.  3,  1848,  p.  95. 
'  Moore,  Digest  of  Intemat,  Law,  VII,  162. 

•  2  Stat,  at  L.,  129. 

*  3  Stat,  at  L.,  230. 

•  Moore,  Digest  of  Intemat.  Law.,  VII,  168. 


316  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

an  act  and  sometimes  in  that  of  a  joint  resolution.  But  in 
either  case  it  is  subject  to  the  President's  power  to  approve 
or  to  veto,  as  is  other  legislation.  The  President  has,  how- 
ever, never  exercised  his  power  of  veto  in  the  case  of  a 
declaration  of  war,  and  it  is  hardly  probable  that  he  will 
find  occasion  to  do  so,  at  all  events  as  long  as  Congress 
continues  the  policy  of  not  adopting  a  declaration  of  war 
except  upon  the  President's  recommendation.  As  in  the 
case  of  other  bills,  the  President  cannot  veto  a  part  of  a 
declaration  of  war,  but  must  approve  or  veto  the  whole. 
If  the  causes  of  war  as  stated  in  the  proposed  act  or  joint 
resolution  are  decidedly  at  variance  with  the  Executive's 
views,  he  might,  therefore,  conceivably  be  led  to  impose  a 
veto,  even  though  he  had  recommended  a  declaration.  But 
he  would  hardly  be  inclined  to  quarrel  over  a  difference 
of  opinion  of  this  sort,  since  it  is  the  result  that  he  is  mainly 
interested  in,  and  since,  once  the  declaration  is  issued,  his 
powers  are  the  same  without  regard  to  the  statement  of 
causes  by  Congress. 

When  a  declaration  of  war  has  been  signed  and  approved, 
it  is  not  necessary  for  the  President  to  notify  the  enemy 
government  of  that  fact.  Diplomatic  relations  with  that 
government  have  usually  already  been  severed.  He  may, 
however,  notify  neutrals;  indeed,  under  the  Hague  con- 
vention relative  to  the  opening  of  hostilities,  belligerents 
are  required  to  notify  neutrals  promptly  at  the  outbreak 
of  war,  and  the  war  has  no  effect  so  far  as  they  are  con- 
cerned until  the  receipt  of  notification.^  As  the  organ  of 
communication  with  foreign  governments,  the  President 
naturally  transmits  such  notification. 

A  declaration  of  war  by  Congress  fundamentally  affects 
the  rights  and  duties  of  the  citizens  of  the  United  States. 
There  is  no  constitutional  or  legal  requirement,  however, 
that  any  special  notification  shall  be  given  them,  other  than 
that  which  they  receive  in  the  case  of  other  acts  of  Con- 

*Malloy,  Treaties,  etc.,  2266. 


THE  BEGINNING  OP  WAR  317 

gress.  But,  on  account  of  the  importance  of  an  outbreak 
of  war,  the  President  usually  notifies  citizens  by  a  formal 
proclamation,*  and  he  may,  in  a  similar  manner,  notify 
alien  residents  of  the  country  as  to  their  rights  and  duties.^ 
The  prosecution  of  war,  once  it  is  declared,  is  almost  en- 
tirely under  the  control  of  the  President,  subject  to  the 
necessity  of  securing  the  financial  support  of  Congress. 
The  latter  body  cannot,  through  its  military  powers,  take 
the  conduct  of  the  war  and  the  direction  of  the  forces  out 
of  the  President's  hands.  It  can,  of  course,  withhold  ap- 
propriations. But  it  is  doubtful  whether  it  can  indirectly 
control  the  President's  power  as  commander-in-chief  to 
direct  the  movement  of  the  forces  through  provisions  in 
appropriation  bills  making  funds  available  for  the  support 
of  the  army  only  on  condition  that  it  is  employed  in  a 
certain  way  or  upon  certain  territory.^  At  any  rate,  after 
war  has  been  declared  against  a  particular  country,  the 
President,  in  the  absence  of  Congressional  prohibition,  may 
send  troops  to  any  part  of  the  world  if,  in  his  judgment, 
such  action  will  serve  any  useful  purpose  in  connection  with 
the  prosecution  of  the  war  against  the  country  which  has 
been  the  object  of  the  declaration.  Thus  during  the  Euro- 
pean war  President  Wilson  sent  troops  to  Russia,  although 
we  were  not  at  war  with  that  power.* 

*See,  for  example.  President  Madison's  proclamation  of  June  19,  1812;  Bich- 
ardson,  op.  cit.,  I,  512. 

^See  President  Wilson's  proclamation  of  April  6,  1917,  reprinted  in  Am. 
Jour,  of  Internat.  Law,  XI,  supjv  p.  152-6  (July,  1917).  The  act  of  Con- 
gress of  July  6,  1798,  relating  to  the  removal  of  alien  enemies  apparently  as- 
sumes that  the  President  will  issue  such  a  proclamation.  U.  S.  Eevised 
Statutes,  sect.  4067;  1  Stat,  at  L.,  577. 

'Cf.  a  proposed  amendment  to  the  army  appropriation  bill  of  1912  to  this 
effect,  Cong.  Record,  August  14,  1912,  vol.  48,  p.  10921.  See  also  the  debate 
with  regard  to  the  respective  control  of  the  President  and  Congress  over  the 
army,  Cong.  Eecord,  April  16,  1920,  vol.  59,  pp.  6206-8. 

*  During  the  sixty-sixth  Congress  a  resolution  was  introduced  by  Representa- 
tive Mason,  of  Illinois,  directing  the  President  to  withdraw  our  troops  from 
Europe  and  Siberia.  But  the  House  committee  on  military  affairs,  after  invest- 
igating the  constitutional  questions  involved,  decided  to  take  no  action  on  the 
resolution.  Cong.  Record,  April  16,  1920,  vol.  59,  p.  6207;  ibid.,  p.  6652: 
See  also  the  message  of  the  President  in  response  to  a  Senate  resolution  regard- 
ing the  armed  forces  in  Siberia,  July  25,  1919.  Sen.  doc.  60,  66th  Cong.,  Ist 
sess. 


318  THE  CONDUCT  OP  AMERICAN  FOREIGN  RELATIONS 

Whether  Congress  can  declare  war  and  then  compel  an 
unwilling  President,  by  threat  of  impeachment,  to  exercise 
his  powers  as  commander-in-chief  of  the  army  and  navy 
in  the  prosecution  of  the  conflict,  is  a  question  which  has 
never  arisen  in  a  practical  form,  although  a  somewhat 
analogous  problem  presented  itself  in  connection  with  the 
efforts  of  Congress  to  compel  the  reluctant  President  John- 
son to  enforce  the  reconstruction  acts  providing*f or  military 
government  of  the  ex-Confederate  states.  Such  a  question 
can  hardly  arise  in  connection  with  a  foreign  war  so  long 
as  Congress  maintains  its  well-established  policy  of  not 
declaring  war  except  upon  the  President 's  recommendation. 

REFERENCES 

Baldwin,  S.  E.,  "The  Share  of  the  President  in  a  Declaration  of  War," 
Am.  Jour,  of  Internat.  Law,  XII,  1-14  (Jan.,  1918). 

Corwin,  E.  S.,  The  President's  Control  of  Foreign  Relations  (Princeton, 
1917),  126-141. 

Moore,  J.  B.,  Digest  of  Internat.  Law  (Washington,  1906),  VII,  162-171. 

Woolsey,  T.  S.,  "The  Beginnings  of  War,"  Proceedings  of  Am.  Pol.  Sci. 
Assoc,  I,  54-68  (1904). 


CHAPTER  XVII 

THE  TERMINATION  OF  WAR 
THE  CESSATION  OF  HOSTILITIES 

THE  termination  of  war  must,  at  the  outset,  be  distin- 
guished from  the  mere  cessation  of  hostilities  or  ac- 
tual combat.  As  an  eminent  writer  has  said,  war  is  '  *not  the 
mere  employment  of  force,  but  the  existence  of  the  legal 
condition  of  things  in  which  rights  are  or  may  be  prose- 
cuted by  force.  Thus,  if  two  nations  declare  war  one 
against  the  other,  war  exists,  though  no  force  whatever 
may  as  yet  have  been  employed. ' '  ^  Similarly,  the  status 
of  war  may  continue,  notwithstanding  that  actual  hostili- 
ties have  ceased,  until  terminated  in  some  way  recognized 
by  international  law  as  sufficient  for  that  purpose.  Actual 
hostilities  are  usually  terminated  by  the  signing  of  an 
armistice  or  a  capitulation,  which  may  take  the  form  of  a 
protocol,  or  preliminary  agreement,  regulating  the  relations 
between  the  belligerents  until  the  definitive  treaty  of  peace 
shall  have  been  signed  and  ratified. 

There  is  no  question  that  the  President  has  power  to 
bring  about  a  suspension  of  hostilities  on  his  sole  authority. 
For  example,  actual  hostilities  were  suspended  in  the 
Spanish- American  war  by  the  protocol  of  August  12,  1898 
(which  was  not  submitted  to  the  Senate),  and  by  Presi- 
dential proclamation  of  the  same  date.^  But,  as  the  Su- 
preme Court  pointed  out,  **a  state  of  war  did  not  in  law 
cease  until  the  ratification  in  April,  1899,  of  the  treaty  of 
peace.  *A  truce  or  suspension  of  arms,'  says  Kent,  *does 
not  terminate  the  war,  but  it  is  one  of  the  commerda  belli 
which  suspends  its  operations.  ...  At  the  expiration  of 

*  Moore's  Digest  of  Int.  Law,  VII,  153. 
*30  Stat,  at  L.,  1780. 

319 


320  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  truce  hostilities  may  recommence  without  any  fresh 
declaration  of  war. '  ' '  ^  The  Attorney-General  of  the 
United  States  took  the  same  view,  declaring  that  *' notwith- 
standing the  signing  of  the  protocol  and  the  suspension  of 
hostilities,  a  state  of  war  hetween  this  country  and  Spain 
still  exists.  Peace  has  not  been  declared  and  cannot  be  de- 
clared except  in  pursuance  of  the  negotiations  between  the 
peace  commissioners  authorized  by  the  protocol.''  ^  More- 
over, a  recognition  of  the  continuation  of  the  war  in  spite 
of  the  suspension  of  hostilities  and  the  signing  of  the  pro- 
tocol was  expressed  in  the  definitive  treaty  of  peace  which, 
in  the  preamble,  mentioned  the  desire  of  the  two  parties  *  *  to 
end  the  war  now  existing  between  the  two  countries. ' '  ^ 

The  principle  thus  upheld  by  the  Supreme  Court,  by  the 
Attorney-General,  and  by  the  treaty-making  authority 
would  seem  to  be  too  well  established  to  be  questioned. 
Nevertheless,  during  the  prolonged  delay  which  followed 
the  armistices  with  Germany  and  Austria-Hungary  in  No- 
vember, 1918,  arising  from  the  failure  of  the  President  and 
Senate  to  agree  upon  the  terms  of  a  definitive  treaty,  there 
was  some  doubt  whether  our  status  after  the  suspension  of 
hostilities  was  one  of  war  or  one  of  peace.  Diplomatic 
relations  with  the  Central  Powers  continued  severed,  but 
commercial  relations  with  Germany  were  to  some  extent 
resumed.*  In  transmitting  the  terms  of  the  armistice  to 
Congress  on  November  11, 1918,  President  Wilson  made  the 
statement  that  *'the  war  thus  comes  to  an  end,  for  having 
accepted  these  terms  of  the  armistice  it  will  be  impossible 
for  the  German  command  to  renew  it. ' '  He,  however,  could 
hardly  have  meant  that  the  war  had  been  legally  terminated. 
For  practical  purposes,   actual  warfare  by  the   Central 

»  Hijo  V.  United  States,  194  U.  S.,  315,  at  p.  323. 

»22  Op.  V.  S.  Atty.-GcTL,  191.  (Aug.  24,  1898).  For  qualification  of  the 
latter  part  of  the  Attorney-General's  statement,  see  below,  p.  331. 

"Malloy,  Treaties,  etc.,  II,  1690. 

*  Limited  intercourse  with  the  enemy  may  be  permitted,  even  during  hostil- 
ities, by  act  of  Congress  prescribing  the  conditions  under  which  it  may  be 
carried  on.     Hamilton  v.  Dillin,  21  Wall.,  73. 


THE  TERMINATION  OF  WAR  321 

Powers  was  at  an  end ;  but  a  state  of  war,  as  he  well  knew, 
still  existed. 

Curiously,  however,  the  declaration  was  construed  by  a 
lower  federal  court  as  equivalent  to  an  official  proclamation 
of  the  end  of  the  war.  The  question  before  the  court  in- 
volved the  construction  of  a  provision  of  a  measure  passed 
by  Congress  in  1917  making  certain  acts  criminal  if  com- 
mitted ** during  the  present  war.'*  The  court  declined  to 
enforce  the  penalty  prescribed,  on  the  ground  that  the  war 
had  ended  upon  the  announcement  of  the  President.^ 

This,  however,  does  not  seem  to  have  been  a  well-consid- 
ered decision.  Even  if  the  President's  statement  was 
intended  as  an  official  proclamation  of  the  legal  end  of  the 
war,  it  is  somewhat  doubtful  whether  that  official  could 
thus,  by  his  sole  act,  upon  the  mere  signing  of  the  armistice, 
bring  the  war  to  a  legal  termination.  The  Supreme  Court 
seems  to  have  held  that  the  Civil  War  was  ended  in  differ- 
ent states  on  different  dates  by  Presidential  proclamation.^ 
It  is  not  clear  that  if  Congress  had,  by  act  or  joint  resolu- 
tion, adopted  a  different  date  as  the  end  of  the  Civil  War 
from  that  mentioned  in  the  President's  proclamation,  the 
court  would  not  have  followed  the  determination  of  Con- 
gress rather  than  that  of  the  President.  It,  however,  con- 
tinued a  certain  rate  of  pay  to  soldiers  in  the  army  **for 
three  years  after  the  close  of  the  rebellion,  as  announced 
by  the  President"  in  his  proclamation,^  thereby  adopting 
the  date  which  the  President  had  fixed;  and  in  other  cases 
than  the  one  cited  the  Supreme  Court  seems  to  take  the 
actions  of  both  the  President  and  Congress  into  considera- 
tion in  determining  the  date  at  which  the  Civil  War  ended.^ 

*U.  S.  V.  Hicks,  256  Fed.,  707  (1919). 

"The  Protector,  12  Wall.,  700;    14  Stat,  at  L.,  811,  814. 

» 14  Stat,  at  L.,  422. 

*U.  S.  V.  Anderson,  9  Wall.,  56,  70;  McElrath  v.  U.  S.,  102  U.  S.,  438; 
Lamar  v.  Browne,  92  U.  S.,  187.  In  the  Anderson  case  the  court  said:  ''As 
Congress,  in  its  legislation  for  the  army  has  determined  that  the  Rebellion 
closed  on  the  20th  day  of  August,  1866,  there  is  no  reason  why  its  declaration 
on  this  subject  should*  not  be  received  as  settling  the  question  wherever  private 
rights  are  affected  by  it. " 


322  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

Even  though  it  should  be  held  that  the  proclamation  of 
the  President  alone  was  sufficient  to  terminate  the  Civil 
War,  it  is  to  be  remembered  that  that  war,  although  par- 
taking in  some  respects  of  the  characteristics  of  a  war 
between  independent  states,  was  fundamentally  a  contest 
for  the  suppression  of  a  domestic  insurrection,  ending  in 
the  overthrow  of  the  insurrectionary  government.  Hence 
the  method  to  be  pursued  in  determining  the  date  of  its 
conclusion  might  be  different  from  that  to  be  followed  in 
the  case  of  a  foreign  war  in  which  the  foreign  belligerent 
still  has  a  government  in  existence  at  the  termination  of 
hostilities.  At  all  events,  as  indicated  above,  in  the  case 
of  the  armistices  with  the  Central  Powers  the  President's 
announcement  to  Congress  is  not  to  be  regarded  as  an 
official  proclamation  of  the  legal  termination  of  the  war. 

Congress,  indeed,  gave  abundant  evidence  that  it  did 
not  consider  the  signing  of  the  armistices  of  1918  and  the 
accompanying  announcement  by  the  President  to  have 
brought  the  war  to  a  legal  termination.  Thus,  after  the 
armistices.  Congress  passed,  and  the  President  approved, 
the  War-time  Prohibition  Act,  which  made  illegal  the  sale 
of  distilled  spirits  for  beverage  purposes  ''after  June  30, 
1919,  until  the  conclusion  of  the  present  war  and  thereafter 
until  the  termination  of  demobilization,  the  date  of  which 
shall  be  determined  and  proclaimed  by  the  President. ' '  ^ 
The  validity  of  this  act  was  attacked  in  the  Supreme  Court 
on  the  ground,  among  others,  that  demobilization  had  been 
effected,  that  the  war  had  been  concluded,  and  that  thereby 
the  war  emergency  upon  which  the  operation  of  the  measure 
had  been  predicated  was  removed.  The  court,  however, 
denied  the  contention  and  upheld  the  act's  validity  and 
continued  operation.  ' '  In  the  absence, ' '  it  said, ' '  of  specific 
provisions  to  the  contrary  the  period  of  war  has  been  held 
to  extend  to  the  ratification  of  the  Treaty  of  Peace  or  the 

*40  Stat,  at  L.,  1045,  1046. 


THE  TERMINATION  OP  WAR  828 

proclamation  of  peace.  .  .  .  *  Conclusion  of  the  war^  clearly 
did  not  mean  cessation  of  hostilities,  because  the  act  was 
approved  ten  days  after  hostilities  had  ceased  upon  the 
signing  of  the  armistice.  Nor  may  we  assume  that  Congress 
intended  by  that  phrase  to  designate  the  date  when  the 
Treaty  of  Peace  should  be  signed  at  Versailles  or  elsewhere 
by  German  and  American  representatives,  since  by  the 
Constitution  a  treaty  is  only  a  proposal  until  approved  by 
the  Senate. ' '  The  court  also  held  that  the  President 's  state- 
ment that  **the  war  thus  comes  to  an  end"  was  meant  in  a 
popular  sense  and  not  as  an  official  proclamation  of  the 
war's  termination.^ 

Numerous  other  acts  passed  during  the  war  provided  that 
they  should  remain  in  force  until  the  termination  of  the 
war  or  until  varying  lengths  of  time  thereafter.  Thus  in 
the  Trading  with  the  Enemy  Act  of  1917  it  was  provided 
that  **the  words  *end  of  the  war'  as  used  herein  shall  be 
deemed  to  mean  the  date  of  proclamation  of  exchange  of 
ratifications  of  the  treaty  of  peace,  unless  the  President 
shall,  by  proclamation,  declare  a  prior  date,  in  which  case 
the  date  so  proclaimed  shall  be  deemed  to  be  the  *  end  of  the 
war '  within  the  meaning  of  this  act. ' '  ^  Corresponding  pro- 
visions of  other  war-time  measures  agree  with  this  one  in 
indicating  that  Congress  expected  the  war  to  end  normally 
with  a  treaty  of  peace,  yet  apparently  considered  that  it 
might  be  terminated  at  a  prior  date  by  Presidential  proc- 
lamation. It  is  not  to  be  inferred,  however,  that  Congress 
necessarily  intended  to  intimate  that  a  foreign  war  could 
be  terminated  by  mere  Presidential  proclamation  without 
a  treaty  of  peace.  The  actions  mentioned  merely  deter- 
mined the  period  during  which  certain  pieces  of  legislation 
should  remain  in  force,  and  had  no  direct  bearing  on  the 
termination  of  the  war  in  an  international  sense. 

*  Hamilton  v.  Kentucky  Distilleries  and  Warehouse  Co.,  251  U.  S.,  146. 
'40  Stat,  at  L.,  412. 


324  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

TEBMINATION  BY  TREATY  OF  PEACE 

The  normal  and  nsnal  method  of  ending  war  between 
nations  is  a  formal  treaty  of  peace.  The  wars  in  which 
the  United  States  has  been  engaged  have  been  almost  in- 
variably terminated  in  this  way.  In  the  case  of  the  Spanish- 
American  War,  as  indicated  above,  the  definitive  treaty  of 
peace  was  preceded  by  a  preliminary  agreement,  which  also 
included  the  armistice,  providing  for  the  suspension  of 
hostilities.  In  the  cases  of  the  War  of  1812  and  the  Mexican 
War  there  was  no  armistice  or  preliminary  agreement,  and 
the  definitive  treaty  of  peace  was  signed  while  hostilities 
were  still  in  progress.  Even  in  the  cases  of  the  wars  with 
the  Barbary  states,  in  which,  as  we  have  seen,  no  formal 
declarations  of  war  were  issued  by  the  United  States,  trea- 
ties of  peace  were  negotiated.  The  warlike  operations 
between  the  United  States  and  France  in  1798  did  not  con- 
stitute a  full-fledged  war,  and  the  treaty  of  1800  by  which 
amicable  relations  between  the  two  countries  were  restored 
was  not,  speaking  strictly,  a  treaty  of  peace.  Most  of  the 
treaties  of  peace  to  which  the  United  States  has  been  a 
party  mention  in  the  preamble  the  desire  of  the  parties  to 
end  the  war  existing  between  them.  The  French  treaty  of 
1800,  however,  merely  speaks  of  the  desire  of  the  parties 
*'to  terminate  the  differences''  which  have  arisen  between 
them.^ 

While  it  is  commonly  recognized  that  a  treaty  of  peace  is 
the  normal  method  of  terminating  an  international  war,  the 
question  may  be  raised  whether  it  is  the  only  method  which 
the  United  States  can  employ.  Good  authorities  have  some- 
times declared  to  this  effect.  Thus  in  the  course  of  his 
opinion  in  the  case  of  Ware  v.  Hylton,  Justice  Chase  said : 
*'A  war  between  two  nations  can  only  be  concluded  by 
treaty. ' '  ^    Again,  Senator  Lodge,  chairman  of  the  Foreign 

'  Malloy,  Treaties,  etc.,  I,  496. 
'3DaU.,  236. 


THE  TERMINATION  OF  WAR  825 

Relations  Committee,  said  on  the  floor  of  Congress:  *' Peace 
can  be  made  only  by  the  President  and  Senate.*'*  These 
statements,  however,  were  obiter  and  cannot  be  accepted 
as  conclusive.  Merely  because  all  of  the  foreign  wars  in 
which  the  United  States  has  been  engaged  hitherto  have 
been  ended  by  treaty,  it  does  not  follow  that  there  is  no 
other  possible  method. 

Three  ways  are  commonly  recognized  in  international 
law  in  which  war  may  be  terminated.  A  recent  writer,  in 
beginning  a  treatise  on  the  subject,  states  them  as  follows: 
**  (1)  by  a  mere  cessation  of  hostilities  on  both  sides,  with- 
out any  definite  understanding  supervening;  (2)  by  the 
conquest  and  subjugation  of  one  of  the  contending  parties 
by  the  other,  so  that  the  former  is  reduced  to  impotence 
and  submission;  (3)  by  a  mutual  arrangement  embodied  in 
a  treaty  of  peace,  whether  the  honors  of  war  be  equal  or 
unequal. ' '  ^ 

TERMINATION  BY  CONQUEST  OB  CESSATION  OF  HOSTILITIES 

It  has  sometimes  been  questioned  whether  the  United 
States  is  empowered  to  terminate  war  by  the  conquest  and 
subjugation  of  the  enemy.  The  doubt  is  based  upon  a  state- 
ment by  Chief  Justice  Taney  in  the  case  of  Fleming  v.  Page 
in  which  he  said :  *  *  The  genius  and  character  of  our  insti- 
tutions are  peaceful,  and  the  power  to  declare  war  was  not 
conferred  upon  Congress  for  the  purposes  of  aggression 
or  aggrandisement.  ...  A  war,  therefore,  declared  by  Con- 
gress, can  never  be  presumed  to  be  waged  for  the  purpose 
of  conquest  or  the  acquisition  of  territory;  nor  does  the 
law  declaring  the  war  imply  an  authority  to  the  President 
to  enlarge  the  limits  of  the  United  States  by  subjugating 
the  enemy's  country.''  ^  In  the  same  opinion,  however,  the 
Chief  Justice  admits  that,  by  the  laws  and  usages  of  nations, 

*Cong.  Eeeord,  April  21,  1914,  vol.  51,  p.  6965. 

"Coleman  Phillipson,  Termination  of  War  and  Treaties  of  Peace,  3, 

'  9  How.,  603,  614, 


326  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

conquest  is  a  valid  title ;  and  it  has  been  recognized  by  the 
Supreme  Court  that  the  United  States  has  all  powers  in 
international  relations  that  other  sovereign  and  independ- 
ent nations  have.^  Certainly  the  courts  would  not  inter- 
fere if  the  United  States  should  prosecute  a  duly  declared 
foreign  war  to  the  extent  of  subjugating  the  enemy  and 
overthrowing  his  government.^ 

We  have  sometimes  taken  the  ground,  furthermore,  that 
a  war  has  been  terminated  by  a  mere  cessation  of  hostili- 
ties. In  1868,  when  hostilities  between  Spain  and  Peru  had 
ceased  for  several  years  without  a  treaty  of  peace,  and 
when  the  United  States  offered  to  sell  some  warships  to 
Peru,  Spain  protested  on  the  ground  that  such  action  would 
violate  our  neutrality,  since  there  was  stiU  a  status  of  war. 
Secretary  Seward,  however,  denied  the  Spanish  contention, 
on  the  ground  that  the  war  had  ended.  * '  It  is  certain, ' '  he 
said,  ^Hhat  a  condition  of  war  can  be  raised  without  an 
authoritative  declaration  of  war,  and,  on  the  other  hand, 
the  situation  of  peace  may  be  restored  by  the  long  suspen- 
sion of  hostilities  without  a  treaty  of  peace  being  made.''  ^ 

In  case  the  United  States  should  be  a  party  to  a  war 
resulting  in  the  complete  subjugation  of  the  enemy  and  the 
overthrow  of  his  government,  or  in  the  cessation  of  hostili- 
ties for  a  sufficient  length  of  time  to  indicate  that  there 
was  no  intention  of  renewing  them,  there  would  be  no  for- 
mal treaty  of  peace,  and  the  question  would  arise  as  to 
where,  in  our  Government,  the  power  to  declare  peace 
resides.  When  war  is  ended  by  treaty,  the  treaty  is  pri- 
marily a  contract  or  bargain  between  the  powers  concerned, 
and  is  recognized  as  binding  in  international  law  if  no 
duress  has  been  exercised  against  the  negotiators.  Fur- 
thermore, in  the  United  States  a  treaty  is  a  part  of  the 
supreme  law  of  the  land,  and  is  therefore  a  legal  method 

*  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.,  698. 

'  Cf .  Luther  v.  Borden,  7  How.,  1. 

*Dip.  Cor.  1868,  II,  32,  quoted  in  Moore,  Digest  of  Intemat.  Law,  VII,  336. 


THE  TERMINATION  OF  WAR  327 

of  ending  war.  Subjugation  of  the  enemy  and  long  cessa- 
tion of  hostilities,  however,  are  facts  and  not  laws,  although 
legal  inferences  and  conclusions  may  be  built  upon  them. 
The  question  is,  What  branch  or  authority  in  our  Govern- 
ment is  competent  to  establish  the  legal  inference  that,  as 
the  result  of  such  facts,  the  war  is  ended  and  peace  is 
restored  ? 

The  Constitution  contains  no  specific  grant  of  power  to 
any  branch  of  the  Government  to  make  peace.  The  matter 
came  up  for  discussion,  however,  in  the  Philadelphia  con- 
vention on  August  17,  1787,  in  connection  with  the  power 
to  make  war.  Pinckney  was  in  favor  of  vesting  the  power 
to  make  war  in  the  Senate  and  remarked  that  .**it  would 
be  singular  for  one  authority  to  make  war  and  another 
peace,''  thus  indicating  his  belief  that  the  power  to  make 
treaties,  which  at  that  stage  in  the  proceedings  was  vested 
in  the  Senate  alone,  included  the  power  to  make  peace.^ 
This  view  was  held  also  by  Ellsworth,  who  declared  that 
**  there  is  a  material  difference  between  the  cases  of  making 
war  and  making  peace.  It  should  be  more  easy  to  get  out 
of  war  than  into  it.  War  also  is  a  simple  and  overt  declara- 
tion, peace  attended  with  intricate  and  secret  negotiations. ' ' 
Mason  also  was  for  *  *  clogging  rather  than  facilitating  war ; 
but  for  facilitating  peace. ' '  When,  therefore,  it  was  moved 
to  add  **and  peace''  after  **war,"  so  as  to  give  Congress 
as  a  whole  the  power  to  declare  both  war  and  peace,  it  was 
unanimously  voted  down.^ 

These  proceedings,  together  with  those  which  took  place 
in  connection  with  the  consideration  of  the  treaty-making 
power,  indicate  that  the  convention  assumed  that  there  was 
no  such  similarity  in  the  methods  to  be  pursued  in  declar- 
ing war  and  in  making  peace  as  to  require  that  both  powers 
should  be  vested  in  the  same  branch  of  government.  While 
the  convention  assumed  that  the  power  to  make  treaties 

^Journal  of  the  Constitutumal  Convention  (Hunt  ed.),  II,  188. 
'Ibid.,  189. 


328  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

includes  the  power  to  make  peace,  it  did  not  exclusively 
vest  the  latter  power  by  an  express  grant  in  any  branch 
of  the  Government,  nor  did  it  expressly  deny  such  power 
to  Congress.  It  may  be  that  the  members  felt  that  if 
Congress  were  given  the  power  to  make  peace,  such  a  grant 
would  be  likely  to  be  construed  as  exclusive,  with  the  result 
that  peace  could  not  be  made  by  the  treaty-making  power 
and  vice  versa.  There  is  nothing,  however,  to  indicate  that 
the  convention  ever  gave  thought  to  the  mode  of  procedure 
in  two  quite  possible  situations:  first,  where  a  war  has 
resulted  in  the  subjugation  of  the  enemy  and  the  overthrow 
of  his  government,  so  that  no  functionaries  exist  with  which 
a  treaty  can  be  made,  and  second,  where  hostilities  have 
long  since  ceased  and  the  treaty-making  power  is  impotent 
to  conclude  peace  on  account  of  an  apparently  irreconcilable 
difference  of  opinion  between  the  President  and  the  Senate 
over  the  terms  of  the  treaty.  Had  these  contingencies  been 
considered,  it  is  not  clear  that  the  convention  would  not 
have  vested  the  power  to  declare  peace,  at  least  under  such 
circumstances,  in  some  body  other  than  the  treaty-making 
authority. 

THE   CONGRESSIONAL.   PEACE   RESOLUTION 

Procedure  in  the  second  of  these  two  contingencies  re- 
cently became  a  matter  of  practical  importance  on  account 
of  the  failure  of  the  President  and  the  Senate,  for  a  long 
time,  to  agree  upon  the  terms  of  a  treaty  of  peace  with 
Germany.  In  view  of  the  deadlock  between  the  parts  of 
the  treaty-making  authority,  Congress  essayed  to  take  the 
initiative  in  restoring  peace  by  passing,  in  May,  1920,  a 
joint  resolution  which  reads  in  part  as  follows:  ''That 
the  joint  resolution  of  Congress  passed  April  6,  1917,  de- 
claring a  state  of  war  to  exist  between  the  Imperial  German 
Government  and  the  Government  and  people  of  the  United 
States,  and  making  provisions  to  prosecute  the  same,  be, 


THE  TERMINATION  OF  WAR  329 

and  the  same  is  hereby,  repealed,  and  said  state  of  war  is 
hereby  declared  at  an  end.  ^ '  ^  This  resolution  was  promptly 
vetoed  by  President  Wilson.  In  July,  1921,  however.  Con- 
gress passed  another  joint  resolution  declaring  peace,  and 
President  Harding  as  promptly  approved  it.  The  latter 
resolution  was  of  similar  tenor  to  the  former  one,  but  in- 
stead of  expressly  repealing  the  resolution  of  April,  1917, 
declaring  war,  it  merely  announced  that  such  state  of  war 
was  * 'hereby  declared  at  an  end.''  ^ 

The  question  of  the  power  of  Congress  to  declare  peace 
after  a  foreign  war,  not  having  before  arisen  in  a  practical 
form,  had  been  given  comparatively  little  attention.  There 
had  been,  however,  some  expressions  of  opinion,  even  if 
apparently  contradictory.  Hare,  in  his  work  on  the  Con- 
stitution, says :  *  *  It  is  the  right  of  the  President,  and  not  of 
Congress,  to  determine  whether  the  terms  [of  peace]  are 
advantageous,  and  if  he  refuses  to  make  peace,  the  war 
must  go  on. ' '  3  Similarly,  in  the  report  of  the  Judiciary 
Committee  of  the  forty-ninth  Congress  on  the  treaty  power, 
made  by  John  Randolph  Tucker,  it  is  stated  that  *  *  Congress 
cannot  create  the  status  of  peace  by  repealing  its  declara- 
tion of  war,  because  the  former  requires  the  concurrence 
of  two  wills,  the  latter  but  the  action  of  one.''*  In  his 
commentaries  on  the  Constitution,  however.  Tucker  says: 
*  *  Is  there  no  end  to  the  war  except  at  the  will  of  the  Presi- 
dent and  Senate?  No  authority  can  be  cited  on  the  ques- 
tion, but  the  writer  thinks  a  repeal  of  a  law  requiring  war 
would  be  effectual  to  bring  about  the  status  of  peace  in 
place  of  war. ' '  ^  Judge  Baldwin  appears  to  be  of  the  same 
opinion.  ** Peace,"  he  says,  *' could  no  doubt  also  be  re- 
stored by  an  act  of  Congress.  As  a  declaration  of  war 
takes  the  shape  with  us  of  a  statute,  it  would  seem  that  it 

»Cong.  Record,  May  15,  1920,  vol.  59,  p.  7680. 
'Ibid.,  July  1,  1921,  vol.  61,  p.  3454. 

*  J.  I.  C.  Hare,  American  Constitutional  Law,  I,  171-2. 

*  Quoted  in  H.  St.  G.  Tucker,  Limitations  on  the  Treaty-Making  Power,  357. 
»  Tucker,  The  Constitution  of  the  United  States,  II,  718. 


330  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

can  be  repealed  by  a  statute. ' '  ^  A  similar  conclusion  is 
reached  by  Whiting,  who  says:  **As  it  is  in  the  power  of 
the  Legislative  Department  to  declare  war,  and  to  provide 
or  withhold  the  means  of  carrying  it  on,  Congress  also  may, 
after  hostilities  shall  have  ceased,  declare  or  recognize 
peace. '  ^  ^ 

These  statements,  while  differing,  are  capable  of  being, 
at  least  to  some  extent,  reconciled.  Tucker,  in  the  report 
cited,  and  Hare,  are  evidently  speaking  of  a  negotiated 
peace,  which  Congress  admittedly  cannot  make,  since  it  has 
no  means  of  carrying  on  pourparlers  directly  with  a  foreign 
government.  In  the  exercise  of  its  power  to  regulate  for- 
eign commerce,  or  in  the  exercise  of  some  other  granted 
power.  Congress  can  pass  a  law  embodying  proposed  terms 
of  peace  and  can  make  the  operation  of  such  law  contingent 
upon  the  consent  of  the  enemy  government  being  secured  to 
such  terms.  But  the  communication  of  the  terms  to  the 
enemy  and  the  notification  by  the  enemy  of  its  acceptance 
must  be  transmitted  through  the  President,  and  such  offer 
and  acceptance  would  constitute  an  international  agree- 
ment, if  not  a  treaty.  In  his  treatise  on  the  Constitution, 
Tucker  does  not  specify  the  sort  of  peace  of  which  he  is 
speaking;  nor  does  Baldwin;  and  their  statements,  in  the 
unqualified  form  in  which  they  appear,  cannot  be  accepted 
as  invariably  true.  The  determination  of  the  question  is 
dependent  on  collateral  facts  and  circumstances,  which  vary 
in  different  cases.  Whiting  ^s  statement,  although  general 
in  form,  doubtless  refers  primarily  to  the  case  of  a  civil 
war.  Moreover,  he  does  not  assert  the  power  of  Congress 
to  create  a  status  of  peace,  but  merely  to  declare  or  recog- 
nize the  existence  of  peace  after  hostilities  shall  have 
ceased. 

The  concurring  will  to  peace  of  the  erstwhile  enemy  may 
be  indicated,  without  formal  notification,  by  reciprocal  and 

*  Baldwin  in  Am.  Jour,  of  Internat.  Law,  XII,  13-14  (Jan.,  1918). 
'Whiting,  War  Powers  Under  the  Constitution  (43rd  ed.),  312. 


THE  TERMINATION  OF  WAR  331 

extended  intermission  of  hostilities,  especially  if  evidenced 
by  some  positive  action  that  there  is  no  intention  to  renew 
them.  It  would  hardly  be  maintained  that  Congress  could 
end  a  foreign  war  by  declaring  peace  while  the  war  is  being 
actively  waged  on  both  sides.  Congress,  of  course,  cannot 
appropriate  funds  for  the  support  of  the  army  for  a  longer 
period  than  two  years,  and  it  might  withhold  or  limit 
appropriations  for  this  purpose,  whether  hostilities  are  in 
progress  or  not,  thereby  tying  the  hands  of  the  President 
in  prosecuting  a  war  and  compelling  him  to  sue  for  peace. 
Such  action,  however,  would  not  end  the  war  as  a  matter  of 
legal  status. 

The  passage  of  a  peace  resolution  by  Congress,  based  on 
the  assumption  that  the  former  enemy  has  no  intention  of 
further  prosecuting  hostilities,  would  indicate  a  similar 
absence  of  intention  on  the  part  of  our  Government,  in  so 
far  as  Congress  can  determine  our  policy  in  such  a  matter, 
and  would  have  weight  as  coming  from  that  branch  of  the 
Government  whose  action  and  cooperation  are  necessary 
not  only  for  the  declaration  of  war  but  also  for  its  vigorous 
prosecution.  The  passage  of  such  a  resolution  would  indi- 
cate that,  so  long  at  least  as  Congress  remained  of  the  same 
mind,  funds  for  the  further  prosecution  of  the  war  would 
not  be  forthcoming.  If  coupled  with  the  continued  cessa- 
tion of  hostilities  by  the  former  enemy,  it  would  constitute 
a  concurrent  undertaking  to  terminate  the  war  without 
terms.  It  would  not,  however,  preclude  the  subsequent 
making  and  ratification  of  a  treaty  defining  the  terms  of 
peace.  The  concurrent  undertaking  to  terminate  the  war 
might  be  only  tacit,  if  the  cessation  of  hostilities  should  be 
sufficiently  continued;  or  the  intention  not  to  renew  them 
might  be  indicated  by  positive  action.  In  the  case  of  the 
attempt  to  terminate  the  war  with  Germany,  the  under- 
taking of  that  power  not  to  renew  hostilities  was  evidenced 
by  its  ratification  of  the  treaty  of  Versailles,  which  itself 
provided  that,  upon  its  coming  into  force  (after  ratification 


332  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

by  Germany  and  three  of  the  allied  and  associated  powers), 
the  state  of  war  should  terminate.  In  spite  of  this  pro- 
vision, the  state  of  war  between  the  United  States  and 
Germany  continued,  in  the  absence  of  ratification  by  the 
United  States.  But,  even  so,  the  war  could  doubtless  have 
been  terminated,  without  a  treaty,  by  a  similar  concurrent 
undertaking  on  the  part  of  the  United  States  not  to  renew 
hostilities,  as  evidenced  by  a  joint  resolution  of  Congress. 

A  state  of  war  may  exist  before  it  is  formally  declared 
by  Congress.  It  has  been  customary  for  Congress  not  to 
declare  war  directly,  but  to  recognize  by  declaration  the 
existence  of  a  state  of  war  brought  on  by  the  acts  of  the 
foreign  government  against  which  the  declaration  is  di- 
rected. The  Constitution  does  not  specifically  give  Con- 
gress the  power  to  recognize  the  existence  of  a  state  of 
war,  but  it  will  not  be  denied  that  this  power  is  implied  and 
included  in  the  power  to  declare  war.  Hence  it  may  be 
argued  that  Congress  has  the  implied  power  to  recognize 
by  declaration  a  state  or  condition  in  which  war  has  in  fact 
ceased,  due  to  the  long  cessation  of  hostilities  or  to  the 
complete  subjugation  of  the  enemy.  Even  though  such  a 
declaration  might  be  regarded  as  having  no  international 
effect,  it  would  still  have  domestic  force  with  reference  to 
the  rights  and  duties  of  our  citizens.  Such  a  determina- 
tion by  Congress,  as  we  have  seen,  has  been  recognized 
by  the  Supreme  Court  as  having  weight  in  a  domestic  sense 
in  the  case  of  our  Civil  War.^  If  the  Confederacy  had  been 
successful,  the  Civil  War  would  doubtless  have  been  ter- 
minated by  a  treaty  of  peace.  As  it  was,  the  method  of 
termination  probably  differed  but  little  from  that  which 
would  be  followed  in  the  case  of  a  foreign  war  in  which  the 
United  States  should  completely  subjugate  the  enemy  and 
overthrow  his  government. 

The  ground  upon  which  the  power  of  Congress  to  declare 
peace  is  usually  based  is  the  power  to  repeal  any  act  or 

»U.  S.  V.  Anderson,  9  Wall.,  71. 


THE  TERMINATION  OF  WAR  333 

resolution  which  the  body  has  power  to  pass.  Thus  it  has 
been  said  that  * '  Congress  has  the  right,  simply  by  virtue  of 
its  power  to  repeal  its  previous  enactments,  to  declare  hos- 
tilities with  Germany  to  be  at  an  end,  and  its  declaration  to 
this  effect,  once  duly  enacted,  will  be  binding  upon  the 
Courts  and  the  Executive  alike.''  ^  It  does  not  necessarily 
follow,  however,  from  the  mere  fact  that  Congress  by  act 
or  joint  resolution  can  create  a  status  of  war,  that  it  can 
restore  peace  by  a  simple  repeal  of  its  former  act.  This 
seems  to  have  been  tacitly  admitted  by  the  framers  of  the 
Congressional  peace  resolution  of  1920,  which  not  only  pro- 
vided for  the  repeal  of  the  previous  declaration  of  war  but 
expressly  declared  the  state  of  war  thereby  created  to  be 
at  an  end.  They  thus  assumed  to  exercise  the  power,  not 
only  to  recognize  the  existence  of  peace  by  repealing  the 
declaration  of  war,  but  also  to  create  a  status  of  peace  by 
Congressional  resolution.  Without  doubt,  Congress  can 
repeal  its  declaration  of  war.  But  the  question  is.  Does 
such  repeal  operate  to  restore  peace?  In  the  Hicks  case, 
cited  above,  in  which  it  was  contended  that  since  Congress 
alone  can  begin  war,  it  alone  can  terminate  it,  the  court 
said:  '*But  that  does  not  follow,  because  the  Constitution, 
while  in  express  terms  giving  Congress  the  sole  power  of 
declaring  war,  in  no  way  so  expresses  itself  as  to  give  that 
body  any  authority  itself  to  terminate  it. ' '  ^  Congress  can 
pass  an  act  or  joint  resolution  admitting  a  state  into  the 
Union.  But  it  would  hardly  be  maintained  that,  after  a 
state  has  once  been  admitted.  Congress  could  expel  it  by 
a  simple  repeal  of  the  act  admitting  it.  Similarly,  Congress 
can  by  resolution  propose  a  constitutional  amendment  to 
the  state  legislatures  for  ratification.  But  when  the  pro- 
posed amendment  has  been  transmitted  to  the  legislatures 
the  power  of  Congress  over  the  matter  is  at  an  end.^    These 

*E.  S.  Corwin,  '*The  Power  of  Congress  to  Declare  Peace,''  Mich.  Lcm, 
Beview,  XVIII,  674  (May,  1920). 
=«U.  S.  V.  Hicks,  256  Fed.,  707. 
•Jameson,  The  Constitutional  Convention  (1st  ed.),  p.  505,  sect.  549. 


334  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

illustrations,  however,  merely  indicate  that  Congress  can- 
not always  undo  that  which  it  has  the  power  to  do ;  they  do 
not  necessarily  prove  that  it  cannot  restore  peace  by  the 
repeal  of  a  declaration  of  war. 

Light  on  the  question  as  to  the  power  of  Congress  to  re- 
store peace  may  perhaps  be  drawn  by  analogy  from  the 
power  to  acquire  new  territory.  This  power  also  is  not 
expressly  granted  in  the  Constitution  to  any  branch  of  the 
government.  It  has  been  implied  from  the  power  to  make 
war  and  to  make  treaties,^  and  may  also  be  derived  from 
the  principle  that,  in  its  international  relations,  the  United 
States  has  such  powers  as  international  law  recognizes  in 
states  generally.  The  usual  method  of  acquiring  territory 
has  been  by  treaty.  However,  this  plan  has  been  followed 
only  when  there  was  a  ceding  power  with  which  a  treaty 
could  be  made  and  which  continued  to  exist  as  an  independ- 
ent government  after  the  annexation  of  the  transferred  ter- 
ritory to  the  United  States.  Texas  and  Hawaii  were  ac- 
quired by  joint  resolution  of  Congress.  In  both  of  these 
cases  there  was  no  government  with  which  to  make  a  treaty 
except  the  government  of  the  territory  annexed,  which 
ceased  to  have  an  independent  existence  at  the  moment  of 
annexation.  Texas  was  annexed  in  pursuance  of  the  express 
grant  to  Congress  of  the  power  to  admit  new  states  into 
the  Union.  But  Hawaii  was  not  admitted  as  a  state,  and 
its  annexation  represents  a  greater  extension  of  Congres- 
sional power. 

Another  example  of  the  acquisition  of  territory  by  Con- 
gress is  found  in  the  operation  of  the  guano  island  act  of 
1856,  which  provides  that  when  any  citizen  of  the  United 
States  shall  discover  a  guano  island  not  occupied  by  the 
citizens  of  any  other  government  and  not  within  the  lawful 
jurisdiction  of  any  foreign  country,  and  shall  take  peace- 
able possession  of  the  same,  such  island  may,  at  the  dis- 
cretion of  the  President,  be  considered  as  belonging  to  the 

*  American  Insurance  Co.  v.  Canter,  1  Pet.,  511, 


THE  TERMINATION  OF  WAR  835 

United  States.^  The  validity  of  this  act  was  tested  in  the 
Supreme  Court,  and  that  tribunal  found  ample  warrant  for 
the  measure  in  the  principle  that,  by  international  law,  ter- 
ritory may  be  acquired  by  discovery  or  occupation,  as  well 
as  by  cession  or  conquest,  and  that  when  citizens  of  a  nation 
take  possession  of  unoccupied  territory,  the  nation  to  which 
such  citizens  belong  may  exercise  such  jurisdiction  as  it  sees 
fit  over  the  territory  so  acquired.^ 

Thus  the  power  of  Congress  to  acquire  territory  by 
statute  or  joint  resolution  is  recognized  as  proper  where 
there  is  no  foreign  government  with  which  a  treaty  can 
appropriately  be  made.  The  same  distinction  would  be 
followed  in  case  of  the  alienation  of  territory.  If  territory 
were  to  be  alienated  to  a  foreign  power,  it  would  seem  that 
the  treaty  method  would  have  to  be  adopted.  But  if  the 
alienation  should  take  the  form  of  a  grant  of  independence 
to  a  particular  portion  of  the  country,  the  appropriate 
method  would  be  by  statute  or  joint  resolution.^  Similarly, 
in  the  case  of  making  peace,  it  would  seem  that  when  the 
United  States  subjugates  the  enemy  and  overthrows  his 
government,  it  becomes  the  function  of  Congress  by  act  or 
joint  resolution  to  declare  peace,  since  there  is  no  govern- 
ment with  which  to  make  a  treaty.  Also,  in  the  case  of  a 
prolonged  cessation  of  hostilities  (since  this  is  recognized 
by  international  law  as  a  method  of  ending  war,  if  there 
is  no  intention  of  renewing  such  hostilities)  the  evidence  of 
lack  of  intention  on  our  part  to  resume  hostilities  might, 
if  predicated  on  sufficient  evidence  of  a  similar  lack  of  inten- 
tion on  the  part  of  the  former  enemy,  be  given  by  Congres- 
sional act  or  joint  resolution.*  It  has  been  objected  that, 
if  Congress  can  declare  peace,  it  can  pass  a  law  to  bring 

» 11  Stat,  at  L.,  119. 

'Jones  V.  United  States,  137  IT.  S.,  202. 

"  Willoughby,  Constitutional  Law  of  the  United  States,  I,  513. 

*  Congress  could  obviously  not  take  such  action  by  concurrent  resolution, 
since  this  would  be  an  attempt  to  exclude  the  President  from  an  act  of  a 
legislative  character.  The  joint  resolution  could  be  passed  over  the  President's 
veto,  but  the  President  could  still  prevent  the  full  return  of  normal  peace  con- 
ditions by  refusing  to  resume  diplomatic  relations. 


336  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

the  troops  home,  and  thus  interfere  in  the  direction  of  the 
army  in  the  midst  of  a  campaign.^  This  does  not  neces- 
sarily follow.  But  even  if  it  did  so,  the  difficulty  would  be 
largely  avoided  by  confining  the  power  of  Congress  to  de- 
clare peace  to  the  two  contingencies  mentioned.  Where, 
however,  the  government  of  the  enemy  has  not  been  over- 
thrown, nor  have  hostilities  ceased  for  so  long  a  time  as 
to  indicate  that  there  is  no  intention  of  renewing  them,  the 
only  appropriate  way  of  ending  war  is  by  the  exercise  of 
the  treaty  power.  Even  if  the  treaty  method  is  followed, 
the  exact  date  of  termination,  so  far  as  its  domestic  effect 
is  concerned,  may  be  determined  by  the  President,  since  a 
treaty  of  peace  is  put  into  effect  in  a  domestic  sense  by 
Presidential  proclamation;  and  the  date  of  termination 
as  fixed  in  such  proclamation  need  not  correspond  with 
the  date  of  the  exchange  of  ratifications  of  the  definitive 
treaty  of  peace. 


TERMINATION  BY  PRESIDENTIAL  PROCLAMATION 

If  in  either  of  the  two  contingencies  mentioned,  i.e,,  the 
overthrow  of  the  enemy's  government  and  a  prolonged  ces- 
sation of  hostilities,  Congress  fails  to  act,  can  the  President 
bring  the  war  to  an  end  by  proclamation?  In  August,  1919, 
Senator  Fall,  of  New  Mexico,  propounded  the  following 
question  to  President  Wilson:  **In  your  judgment,  have 
you  not  the  power  and  authority,  by  a  proclamation,  to 
declare  in  appropriate  words  that  peace  exists  and  thus 
restore  the  status  of  peace  between  the  Government  and 
people  of  this  country  and  those  with  whom  we  declared 
warT'  The  President's  reply  was:  ^'I  feel  constrained  to 
say  .  .  .  not  only  that  in  my  judgment  I  have  not  the  power 
by  proclamation  to  declare  that  peace  exists,  but  that  I 
could  in  no  circumstances  consent  to  take  such  a  course 

^speech  of  Mr.  Connally  in  House  of  Representatives,  Cong.  Record,  April 
8,  1920,  vol.  59,  p.  5773. 


THE  TERMINATION  OF  WAR  337 

prior  to  the  ratification  of  a  formal  treaty  of  peace. ' '  ^  In 
view  of  the  fact  that  neither  of  the  two  conditions  in  which 
Congress  can  declare  peace  then  existed,  as  well  as  because 
the  treaty  of  peace  pending  in  the  Senate  had  been  neither 
ratified  nor  rejected  by  that  body,  there  seems  to  be  no 
reason  to  question  the  correctness  of  the  President's  an- 
swer. But  if  either  of  these  two  conditions  had  existed, 
there  would  have  been  some  ground  to  believe,  by  analogy 
with  the  method  of  ending  the  Civil  War,  that  the  President 
had  the  power  in  question,  although,  as  already  indicated, 
the  matter  is  involved  in  some  doubt.  In  one  case,  as  we 
have  seen,  the  Supreme  Court  seemed  to  consider  the  dates 
of  the  termination  of  the  Civil  War  as  depending  on  the 
proclamations  of  the  President,  without  taking  into  account 
the  concurrent  action  of  Congress.^  The  dates  chosen  by 
the  President  were,  however,  sanctioned  by  a  subsequent 
act  of  Congress;  and  the  Supreme  Court,  in  other  cases, 
seems  to  have  considered  the  action  of  Congress  as  of  sub- 
stantial, if  not  controlling,  weight  in  determining  the  end 
of  the  Civil  War.^  The  situation  with  reference  to  the 
power  in  question  seems  analogous  to  that  existing  with 
regard  to  the  power  to  permit  limited  intercourse  with  the 
enemy  in  time  of  war.  In  each  case,  it  would  seem  that  the 
President  alone  may  exercise  the  power,  although  prob- 
ably not  against  the  expressed  will  of  Congress;  but, 
whether  so  or  not,  he  may  exercise  it  with  the  concurrent 
authority  of  Congress.*  In  the  absence  of  any  conflicting 
action  on  the  part  of  Congress,  the  courts  would  doubtless 
consider  themselves  bound,  in  determining  private  rights, 

»Cong.  Record,  Aug.  22,  1919,  pp.  4434,  4435. 

"The  Protector,   12  Wall.,  700. 

»  U.  S.  V.  Anderson,  9  Wall.,  71. 

*  Hamilton  v.  Dillin,  21  Wall.,  73.  In  this  connection  it  may  be  pointed  out 
that  certain  war-time  acts  of  Congress  indicate  that  in  the  opinion  of  that 
body  the  President  alone,  by  proclamation,  can  at  least  recognize  the  termina- 
tion of  war  for  the  purpose  of  indicating  the  period  during  which  such  legisla- 
tion shall  operate.    See,  e.g.,  40  Stat,  at  L.,  412. 


338  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

by  the  President's  proclamation;  in  the  case  of  the  Protec- 
tor, the  Supreme  Court  avowedly  considered  itself  so  bound, 
*4n  the  absence  of  more  certain  criteria,  of  equally  general 
application.'' 1 


REFERENCES 

Americcm  Journal  of  International  Law,  XIV,  384-7;  419-20  (July,  1920). 
Corwin,  E.  S.,  "The  Power  of  Congress  to  Declare  Peace,"  Mich.  Law 

Eev.,  XVIII,  669-675  (May,  1920). 
Moore,   J.   B.,   Digest  of  International  Law    (Washington,   1906),   VII, 

335-8. 
Phillipson,  C,  Termination  of  War  and  Treaties  of  Peace  (London,  1916). 
Thomas,  C.  S.,  "The  Power  of  Congress  to  Establish  Peace,"  Am.  Law 

Eev.,  LV,  86-104  (Jan.-Feb.,  1921). 
U.  S.  House  of  Reps.,  Rept.  No.  801,  pts.  1  and  2,  66th  Cong.,  2d  sess. 

*  12  Wall.,  700. 


CHAPTER  XVin 

CONCLUSION 

IN  providing  for  the  conduct  of  foreign  relations  the 
framers  of  our  Constitution  were  guided  by  two  main 
motives  or  attitudes:  (1)  high  regard  for  the  principle  of 
separation  of  powers,  and  (2)  jealousy  of  arbitrary  execu- 
tive power  as  exemplified  in  old-world  institutions.  Hamil- 
ton pointed  out  in  the  Federalist  that  the  king  of  Great 
Britain  was  **the  sole  and  absolute  representative  of  the 
nation  in  all  foreign  transactions. '^  The  founders  of  our 
republic,  however,  had  no  intention  to  make  the  President 
a  dictator  in  foreign  relations.  They  were  men  of  suf- 
ficient practical  acquaintance  with  public  affairs  to  know 
that  the  chief  executive  must  be  given  a  large  measure  of 
control  in  this  field.  None  the  less,  they  rigorously  applied 
the  principle  of  checks  and  balances  by  requiring  the  con- 
currence of  the  Senate  both  in  treaty-making  and  in  diplo- 
matic appointments.  Moreover,  they  deemed  it  wise  that 
in  the  determination  of  peace  or  war  the  direct  representa- 
tives of  the  people  should  have  such  a  degree  of  control 
that  no  declaration  of  war  could  be  issued  without  their 
consent.  This  was  at  the  time  a  striking  innovation,  an 
arrangement  paralleled  nowhere  in  Europe,  and  it  appar- 
ently represented  the  establishment  of  a  broadly  democratic 
basis  for  that  phase  of  our  foreign  relations  which  touches 
the  interests  of  the  whole  people  most  closely. 

Despite  the  theory  of  the  Constitution,  as  thus  outlined, 
the  President  has,  in  practice,  assumed  a  degree  of  power 
which  is  almost  tantamount  to  a  dictatorship  in  the  conduct 
of  foreign  relations.  It  is  true  that  he  is  not  absolute,  and 
that  in  the  pursuit  of  his  foreign  policies  he  sometimes  re- 


340  THE  CONDUCT  OF  AMERICAN  FOREIGN  RELATIONS 

ceives  notable  rebuffs.  The  principal  check  upon  his  con- 
trol is  the  power  of  the  Senate  in  treaty-making,  which  has 
not  infrequently  been  so  employed  as  to  interfere  with  his 
purposes,  or  even  to  thwart  them  completely.  None  the 
less,  the  President  may  evade  this  check  by  making  inter- 
national agreements  which  are  not  submitted  to  the  Senate ; 
he  may  get  around  the  constitutional  requirement  of  Sena- 
torial confirmation  of  his  diplomatic  appointments  by  ap- 
pointing special  diplomatic  agents  on  his  sole  authority; 
and  in  practice  he  has  so  largely  assumed  the  initiative  in 
matters  of  war  and  peace  that,  as  a  rule.  Congress  merely 
ratifies  the  decision  which  he  has  reached. 

Why  has  the  theory  of  the  Constitution  been  so  far  de- 
parted from  in  practice?  The  main  reason  is  that  the 
conduct  of  foreign  relations  is  fundamentally  an  executive, 
rather  than  a  legislative,  function  .  By  its  nature  as  a  con- 
tinuous and  unified  organ  the  executive  is  better  adapted 
to  secure  and  exercise  control  in  this  field  than  a  legisla- 
tive body  can  be.  It  is  true  that  the  legislative  power  of 
appropriating  the  public  funds  carries  with  it  here,  as  in 
other  fields  of  governmental  activity,  an  important  and 
pervasive  influence.  But  this  influence  is  usually  indirect. 
The  powers  of  the  President  are  direct,  and  they  enable 
him  to  take  and  hold  the  initiative  and  to  act  with  secrecy 
and  dispatch  when  such  methods  are  desirable.  Moreover 
the  President  is  in  immediate  touch  with  the  sources  of 
oflScial  information  and  is  thus  enabled  to  act  with  more 
adequate  knowledge  than  can  Congress,  which  is  ordinarily 
dependent  for  information  upon  the  action  of  the  President 
in  voluntarily  transmitting  it.  The  presidential  office  is 
thus  fundamentally  and  intrinsically  better  adapted  than 
a  legislative  body  for  the  control  of  foreign  relations;  al- 
though the  amount  and  kinds  of  control  actually  exercised 
vary  from  period  to  period,  according  partly  to  the  urgency 
of  foreign  problems,  partly  to  the  personal  prestige  of  the 


CONCLUSION  341 

incumbent  of  the  office,  and  partly  to  the  degree  of  political 
harmony,  or  the  lack  of  it,  between  him  and  Congress. 

Under  the  principle  of  separation  of  powers,  the  Presi- 
dent and  the  two  branches  of  Congress  are  largely  inde- 
pendent one  of  another.  Yet  their  concurrent  action  is 
frequently  necessary  to  the  performance  of  functions 
which,  directly  or  indirectly,  affect  foreign  relations.  In 
order  that,  under  these  circumstances,  foreign  affairs  may 
be  conducted  without  friction  or  deadlock,  it  is  highly  desir- 
able, and  almost  necessary,  that  the  relations  of  these 
coordinate  organs  of  the  government  be  permeated  with  a 
spirit  of  comity.  The  power  and  the  responsibility,  how- 
ever, rest  largely  with  the  President.  He  is  not  responsible 
to  Congress  in  the  sense  that  the  executive  is  responsible  to 
the  legislature  in  European  parliamentary  governments. 
His  responsibility  is  rather  to  the  people,  from  whom  all 
power  and  authority  are  ultimately  derived,  and  to  whom 
an  accounting  for  his  official  stewardship  must  finally 
be  made. 


TABLE  OF  CASES 


Altman  v.  U.  S.    (224  U.  S.,  583), 

173 
American  Ins.  Co.  v.  Canter  (1  Pet., 

511),  334 
AiMoble  Isabella,  The  (6  Wheat.,  1), 

190 
Baiz,  In  re  (135  U.  S.,  403),  95 
Baldwin  v.  Pranks  (120  U.  S.,  678), 

189 
Bartram    v.   Eobertson    (122    U.    S., 

116),  216,  231 
Bas    V.    Tingy    (4    Ball.,    37),    239, 

?96 
Bello  Corrunes,  The  (6  Wheat.,  152), 

188 
Biddle  V.  V.  S.  (156  Fed.,  762),  111 
Batiller    v.    Dominguez    (130    U.    S., 

238),  219,  245 
British  Prisoners,  Case  of   (1  Wood- 
bury &  Minot,  66),  195 
[    Cameal  v.  Banks   (10  Wheat.,  181), 
!       242 

[    Charlton,  Ex  parte  (185  Fed.,  880), 
f       242 
:    Charlton  v.  Kelly  (229  U.  S.,  447),  12, 

191    219    241 
Chae  Chan  Ping  v.  U.  S.  (130  U.  S., 

581),  33,  245 
Cherokee  Nation  v.  Georgia  (5  Pet., 

1),  190 
Cherokee    Tobacco,    The    (11    Wall., 

616),  193,  219,  245 
Chin  A.   On,  In  re    (18   Fed.,  506), 

248 
Chirac  v.  Chirac  (2  Wh.,  259),  186 
Cooper,  In  re  (143  TJ.  S.,  472),  185, 

219 
Cotzhausen  v.  Nazro  (107  U.  S.,  215), 

180 
Dainese  v.  Hale  (91  U.  S.,  13),  112 
Debs,  In  re  (158  U.  S.,  564),  196 
De  Geofroy  v.  Biggs  (133  U.  S.,  256), 

36,  191 
Dillon,  In  re  (7  Fed.  Cas.,  710),  113, 

191 
Dodge  V.  Woolsey    (18   How.,   355), 

192 


Doe  V.  Braden  (16  How.,  635),  191 
Downes  v.  Bidwell  (182  U.  S.,  370), 

210 
Edye  v.  Eobertson   (112  TJ.  S.,  580), 

186 
Field  V.  Clark  (143  U.  S.,  649),  173, 

229 
Fleming  v.  Page  (9  How.,  603),  325 
Fong  Yue  Ting  v.  U.  S.   (149  U.  S., 

698),  33,  176,  195,  196,  245,  326 
Foster  v.  Neilson   (2  Pet.,  307),  12, 

185,  219 

Fourteen  Diamond  Eings  v.  U.  S.  (183 

U.  S.,  176),  160 
Frelinghuysen  v.  Key  (110  U.  S.,  64), 

204 
Ft.  Leavenworth  E.  E.  Co.  v.  Lowe 

(114  U.  S.,  541),  30 
Garcia  v.  Lee  (12  Pet.,  511),  12 
Gelston  v.  Hoyt  (3  Wheat.,  246),  269 
Geofroy  v.  Eiggs  (133  U.  S.,  256),  36, 

191,  220 
Georgia    v.   Stanton    (6   Wall.,    50), 

190 
Gray  v.  U.  S.  (21  Ct.  CI.,  340),  298 
Hamilton  v.  Dillin  (21  Wall.,  73),  320, 

337 
Hamilton  v.  Kentucky  Distilleries  and 

Warehouse  Co.    (251   U.  S.,   146), 

323 
Hamilton  v.   McClaughry    (136  Fed., 

445),  290,  299 
Hauenstein   v.   Lynham    (100   U.   S., 

483),  186 
Haver  v.  Yaker  (9  Wall.,  32),  155 
Head  Money  Cases  (112  U.  S.,  580), 

186,  219,  244,  245 

Hijo  V.  U.  S.  (194  U.  S.,  315),  320 
Holmes  v.  Jennison  (14  Pet.,  540),  31, 

168,  174 
Hooper  v.  U.  S.  (22  C.  Cls.,  408),  238, 

242 
Itata,  The  (56  Fed.,  510),  128 
Jones  V.  Meehan  (175  U.  S.,  1),  186 
Jones  V.  U.  S.   (137  U.  S.,  202),  12, 

128,  335 
Kaine,  In  re  (14  How.,  103),  195 


343 


344 


TABLE  OF  CASES 


Kansas  v.  Colorado  (206  U.  S.,  46), 

268 
Kendall  v.  U.  S.  ex  rel  Stokes   (12 

Pet.,  524),  86 
Kennett  v.  Chambers  (14  How.,  50), 

128 
Knox  V.  Lee  (12  Wall.,  457),  33 
L'Abra   Silver   Mining  Co.   v.   U.   S. 

(175  U.  S.,  423),  204,  245 
Lamar  v.   Browne    (92   U.   S.,   187), 

321 
La  Ninfa,  The  (75  Fed.,  513),  220 
Legal  Tender  Cases   (12  Wall,  457), 

33 
Logan  V,  U.  S.  (144  U.  S.,  263),  283 
Luther  v.  Borden  (7  How.,  1),  29,  326 
Mahoney  v.  U.  S.  (10  Wall.,  62),  241, 

242 
Maiorano  v.  B.  &  O.  B.  R.  Co.   (213 

U.  S.,  268),  220 
Martin  v.  Mott  (12  Wheat.,  19),  281 
McElrath  v.  U.  S.   (102  U.  S.,  438), 

321 
Missouri  v.  Holland  (252  U.  S.,  416), 

36,  196,  197 
Neagle,  In  re   (135  U.  S.,  1),  196, 

277,  283 
Neely  v.  Henkel  (180  U.  S.,  109),  122, 

196,  197 
New  York  Indians  v.  United  States 

(170  U.  S.,  1),  159 
Get j en  v.   Central  Leather  Co.    (246 

U.  S.,  297),  129 
Paquette   Habana,   The    (175   U.   S., 

677),  46,  274,  313 
Parsons  v.  U.  S.  (167  U.  S.,  324),  93 
Pearcy  v.  Stranahan  (205  U.  S.,  257), 

128 
Prize  Cases,  The  (2  Black,  635),  289 
Protector,  The   (12  Wall.,  700),  321, 

337,  338 
Ricaud  v.  American  Metal  Co.    (246 

U.  S.,  304),  129 
Ross,  In  re  (140  U.  S.,  453),  112,  223 
Schooner  Endeavor,  The  (44  Ct.  CI., 

242),  299 
Shoemaker  v.  U.  S.  (147  U.  S.,  282), 

86 
Society,  etc.  v.  New  Haven  (8  Wheat, 

464),  242 
Talbot  V.  Janson  (3  Dall.,  133),  289 
Talbot  V.  Seeman  (1  Cranch,  1),  239, 

296 
Taylor  v.  Morton  (2  Curtis  C.  C.  Rep., 

454),  193,  244,  245 
Terlinden  v.  Ames  (184  U.  S.,  270), 

191,  248 


Three  Friends,  The   (166  U.  S.,  1), 

116,  270 
Toscano,  Ex  parte    (208  Fed.,  938), 

193,  195 
Tucker    v.    Alexandroff    (183    U.    S., 

424),  171,  220 
Turner    v.    Am.    Baptist    Missionary 

Union  (5  McLean,  347),  204 
United  States  v.  Am.  Sugar  Refining 

Co.  (202  U.  S.,  563),  210 
United  States  v.  Anderson   (9  Wall., 

56),  321,  332,  337 
United  States  v.  Arjona  (120  U.  S., 

479),  32,  36 
United  States  v.   Be  la  Maza  Arre- 

dondo  (6  Pet.,  691),  185 
United  States  v.  Ferreira   (13  How., 

40),  86 
United  States  v.  Germaine  (99  U.  S., 

508),  71 
United  States  v.  Hartwell   (6  Wall., 

385),  71 
United    States   v.    Hicks    (256    Fed., 

707),  321,  333 
United  States  v.  Hudson   (7  Cranch, 

32),  187 
United  States  v.  Hutchings  (26  Fed. 

Cas.,  440),  128 
United  States  v.  Lee  Yen  Tai   (185 

U.S.,  213),  193,  245 
United  States  v.  McCuUagh  (221  Fed., 

288),  197 
United  States  v.  Mouat   (124  U.  S., 

303),  71 
United  States  v.   Ortega    (Fed.   Cas. 

No.  15971),  95 
United  States  v.  Palmer   (2  Wheat., 

643),  128 
United  States  v.  Perkins  (116  U.  S., 

483),  93 
United  States    v.   Pulaski   Co.    (243 

U.  S.,  97),  249 
United  States  v.  Rauscher  (119  U.  S., 

407),  31 
United  States  v.  Samples  (258  Fed., 

479),  197 
United  States  v.  Schauver  (214  Fed., 

154),  197 
United  States  v.  Schooner  Peggy   (1 

Cranch,  103),  186 
United  States  v.  Selkirk    (258  Fed., 

775),  197 
United  States  v.  Thompson  (258  Fed., 

257),  197 
United  States  v.  Trumbull  (48  Fed., 

104),  128 


TABLE  OF  CASES 


345 


Virginia   v.    Tennessee    (148    U.    S.,      Whitney   v.    Robertson    (124    U.    S., 

Rr»o\      ^'7n  iQn\     ion     i(io    on  i     oin 


503),  179 
Ward  V.  Race  Horse  (163  U.  S.,  504), 

248 
Ware  v.  Hylton  (3  Call.,  236),  324 
Watts  V.  U.  S.   (Wash.  Terr.,  288), 

183 


190),  190,  192,  211,  219 
Williams  v.  Suffolk  Ins.  Co.  (13  Pet., 

420),  12,  128 
Worcester  v.  Georgia  (6  Pet.,  515), 

147 


INDEX 


Agreements,  by  states,  30-32;  kinds 
of  executive,  169ff;  simple  execu- 
tive, 177ff;  under  treaty  authoriza- 
tion, 174ff 

Agreement-making  power,  the,  168ff 

Alabama  claims  arbitration,  258 
j        Alaska,    purchase    of,    from    Eussia, 
'  205 

Algeciras  Conference  of  1906,  81 
I        Algiers,   recognition  of  war  against, 
315 

Aliens  and  treaty  rights,  34 

Aliens,  rights  and  duties  of,  on  out- 
break of  war,  317;  violation  of 
treaty  rights  of,  187ff ;  status  of,  in 
states,  33-35 

Alien  land  law  in  California,  35 

Alliances,  secret,  non-existence  of, 
181n 

Ambassadors,  Appointment  of,  57 
L       Amendments     and     Reservations     to 
treaties,  154ff 

American  citizens,  protection  of,  by 
consuls,  110 

Appointment  of  diplomatic  represen- 
tatives, 55ff 

Arbitration,  Congress  and,  17; 
treaties,  general,  175ff;  Hague 
court  of,  222;  N.  Atlantic  Coast 
Fisheries,  222n;  of  Alabama  claims, 
258;  policy  of,  260fe;  general 
treaties  of,  262;  permanent  court 
of,  at  Hague,  262 

Argentina  and  the  Falkland  Islands 
case,  12 

Argentine  and  Pretoria  resolutions  of 
1877,  24 

Arjona  case,  The,  32,  36 

Armaments,  limitation  of  naval,  on 
Great  Lakes,  170,  199,  214 

Armed  neutrality,  policy  of,  295flf 

Armenia,  proposed  mandate  over, 
lln 

Armistice  of  November,  1918,  320 

*^ Aroostook  War,''  The,  29 

Articles  of  Confederation,  foreign  re- 
lations under,  4,  23,  28 


Austria-Hungafy,  declaration  of  war 
against,  311n;  armistice  of  1918 
with,  320 

Bannock  Indians,  abrogation  of  treaty 
with,  248 

Barbary  states,  display  of  force 
toward  the,  273 

Boxer  uprising  in  China,  69 

Bryan  peace  treaties,  199,  263 

Bulgaria,  proposed  declaration  of  war 
against,  259 

Burlingame  treaty  with  China,  246 

California,  alien  land  law,  35 

Canadian,  reciprocity  treaty  of  1854, 
termination  of,  231 

Capitulations,  Turkish,  111 

Censure  of  Ambassador  Bayard,  88n 

Central  America,  landing  of  forces  in, 
284-5 

Cessation  of  hostilities,  319ff 

Charlton  extradition  case,  191 

China,  consular  jurisdiction  in,  110; 
expedition  of  1900  against,  299, 
305;  Boxer  uprising  of  1900  in, 
290n;  destruction  of  barrier  forts 
in,  282n;  intervention  by  President 
in,  276-7;  abrogation  of  treaty  of 
1868  with,  246,  247;  open-door  pol- 
icy in,  178;  Boxer  uprising  in,  171; 
protocol  of  1901  with,  171;  United 
States  court  for,  112;  "Open door" 
policy  in,  22n 

Chinese  indemnity,  remission  of,  242; 
immigration  into  IT.  S.,  246,  247 

Civil  service  regulations  in  consular 
service,  104ff;  in  appointment  of 
diplomatic  and  consular  ofS.cers,  61, 
62 

Civil  War,  termination  of  the,  321, 
332,  337 

Clayton-Bulwer,  treaty  of  1850,  198n; 
221n,  223,  236,  283 

Colombia,  treaty  of  1846  with,  283; 
landing  of  forces  in,  194 

Columbus  raid  of  1916  from  Mexico, 
299n 

Communication,  International,  21ff 


347 


348 


INDEX 


Concurrent  resolution,  termination  of 
treaties  by,  228 

Confederation,  Articles  of,  and  for- 
eign relations,  4,  23,  28;  diplomatic 
intercourse  under,  53 

Conferences,  participation  of  U.  S.  in 
international,  79ff 

Congress,  Eelations  of,  with  Secretary 
of  State,  18,  19,  23;  power  of,  to 
prescribe  qualifications  for  dip|lo- 
matic  officers,  61,  62;  eligibility  of 
members  of,  to  diplomatic  positions, 
63ff;  power  of,  to  prescribe  duties 
of  diplomatic  officers,  86;  Act  of, 
relating  to  Consular  service,  98,  99, 
104,  107;  Influence  of,  upon  recog- 
nition, 117ff ;  agreements  authorized 
by,  171ff;  Conflict  between  treaties 
and  acts  of,  191f ;  Enforcement  of 
treaties  by,  196ff ;  morally  obligated 
to  enforce  treaties,  199;  termina- 
tion of  treaties  on  authority  of, 
23 Iff;  termination  of  treaties  by, 
237ff,  243ff;  power  of,  over  mili- 
tary and  naval  forces,  289-290; 
power  of,  to  declare  war,  294ff, 
300;  power  of,  in  war-making,  304, 
307;  Resolution  of,  declaring  war 
against  Germany,  311 

Congress  and  arbitration,  261 

Congress  and  instructions  to  dij\lo- 
matic  officers,  91,  92 

Congress  and  international  communi- 
cation, 23ff 

Congress  and  the  removal  of  diplo- 
matic representatives,  94 

Congress  and  participation  of  U.  S.  in 
international  conferences,  80-84 

Congressional,  peace  resolution,  328ff; 
formulaltion  of  foreign  policy,  17; 
Requests  for  Information,  17ff; 
appropriations  for  diplomatic  serv- 
ice, 55f;  concurrence.  President's 
use  of  force  with,  280ff;  Initiative 
and  Influence,  13ff 

Constitution,  the,  and  treaties,  19  In 

Consuls,  Revocation  of  exequaturs  of, 
95n;  appointment,  promotion  and 
removal  of,  103ff;  powers  and 
duties  of,  106ff;  privileges  and  im- 
munities of,  112,  113 

Consuls-general,  101;  at  large,  101 

Consular,  bureau,  the,  45 ;  service,  his- 
torical development  of,  97ff;  Serv- 
ice, The,  97ff;  reports,  daily,  108 

Corwin,  E.  S.,  The  President 's  Control 
of  Foreign  Belations,  251,  289 


Courts,  The,  and  diplomatic  envoys,  ' 
95;  Federal,  and  consular  cases,  98; 
The,  and  recognition,  127f ;  enforce- 
ment of  treaties  by  the,  185ff,  190ff ; 
the,  and  termination  of  treaties, 
241ff 

Courts  and  political  questions,  the,  12 

Cuba,  insurrection  of  1895  in,  270; 
Intervention  in,  26n;  286,  313;  rec- 
ognition of  insurgency  in,  116n; 
recognition  of,  121ff;  Spain  relin- 
quishes sovereignty  over,  171; 
Piatt  amendment  of  1901  regard- 
ing, 179;  independence  of,  guaran- 
teed, 198n 

Cuban  reciprocity  convention  of  1903, 
209f 

Custom  laws,  enforcement  of  by  con- 
suls, 109 

Czecho -Slovakia,  recognition  of,  126n 

Danish  West  Indies,  acquisition  of, 
12n,  166,  176n 

Declaration  of  Paris  and  privateering, 
298n 

Denmark,  termination  of  treaty  of 
1826  with,  231;  convention  of  1916 
with,  222 ;  treaty  of  1858  with,  216n 

Department  of  State,  The,  38ff;  or- 
ganization of,  43  ff 

Diplomatic  agents,  special,  67ff 

Diplomatic  bureau.  The,  45 

Diplomatic  Intercourse,  53ff 

Diplomatic  offices,  creation  of,  53-55 

Diplomatic  officers,  qualifications  of, 
60ff;  appointment  of,  53;  grades 
of,  56 

Diplomatic  envoys,  reception  of,  92 

Diplomatic  immunities  and  the  courts, 
95 

Diplomatic  missions,  termination  of, 
93ff 

Diplomatic  positions,  eligibility  of 
members  of  Congress  to,  63ff 

Diplomatic  representatives,  recog- 
nition of  states  by  sending  and  re- 
ceiving, 116;  Appointment  of,  55ff; 
instructions  to,  85ff 

Diplomatic  service.  Congressional  ap- 
propriations for,  55f,  58 

Dismissal  of  diplomatic  envoys,  93ff 

Dominican  Republic,  termination  of 
treaty  with,  240 

Efficiency  record  in  diplomatic  serv- 
ice, 45 

Executive  agreement  of  1905  with 
Santo  Domingo,  7n;  control  over 
recognition,    123ff;    order  of    1909, 


INDEX 


349 


President  Taft's,  19;  interpretation 
of  treaties,  214flf;  termination  of 
treaties,  225 

Exequaturs,  consular,  45;  of  consuls, 
revocation  of,  95n;  recognition  by 
grant  of,  124 

Extradition  of  fugitives,  30-32;  war- 
rants of,  45;  agreements,  174;  case, 
Charlton,  191 

Extraterritorial  jurisdiction  of  con- 
suls, llOff;  jurisdiction  in  Japan, 
223 

Falkland  Islands  case,  12 

Federal  government  and  foreign  rela- 
tions, 28 

Forcible  measures  short  of  war,  272ff 

"Foreign  Relations"  volumes,  49 

''Fourteen  points,"  the,  9 

France,  convention  of  1831  with,  9, 
206;  consular  convention  of  1853 
with,  191n;  treaty-making  in,  168; 
abrogation  of  treaty  of  1778  with, 
238;  alliance  of  1778  with,  215, 
218;  treaty  of  1853  with,  36,  219; 
controversy  of  1798  with,  259,  296fie, 
SOOfif;  general  arbitration  treaty 
with,  262;  absorption  of  Madagas- 
car by,  241 ;  proposed  special  treaty 
of  1919  with,  230;  treaty  of  1904 
with,  224;  hostilities  of  1798  with, 
324 

French  Republic,  recognition  of,  124 

French  in  Mexico,  Lincoln  and,  121 

French  spoliation  claims,  259 

German  Zollverein,  proposed  reciproc- 
ity convention  with,  208 
Germany,  Armistice  of  1918  with,  320 
declaration  of  war  against,  311 
treaty  of  peace  with,  152fe,  161f 
proposes  alliance  against  U.  S.,  311 
violation  of  neutral  rights  by,  297 

Germany  and  submarine  warfare,  8 

Ghent,  Treaty  of,  64 
Great  Britain,  Alabama  claims  against, 
258;  boundary  dispute  with,  29; 
cession  of  Horseshoe  Reef  by,  179; 
convention  of  1899  with,  85;  dis- 
pute with  over  Behring  Sea  fisheries, 
219n;  Venezuela  controversy  with, 
260,  261;  convention  of  1817  with, 
227;  general  arbitration  treaty  with, 
262;  fishing  agreement  of  1888 
with,  171;  interpretation  of  treaty 
of  1850  with,  221n;  Jay  Treaty 
with,  144,  149;  Northeast  boundary 
controversy  with,  281;  proposed  ar- 
bitration treaty  of  1897  with,  175  j 


relations  with,  in  1807,  259;  reci- 
procity convention  of  1815  with, 
207;  salmon  fisheries  treaty  with, 
156n;  Rush-Bagot  agreement  with, 
170,  199,  214;  termination  of  treaty 
of  1827  with,  231,  252;  termination 
of  treaty  of  1871  with,  234;  treaty 
of  1783  with,  36 

Guadeloupe  Hidalgo,  Treaty  of,  69 

Guano  Islands,  Act  of  1856  regard- 
ing, 282,  334 

Hague,  Conferences,  81,  83;  conven- 
tion of  1907,  194,  262;  convention 
of  1899,  175,  262 ;  convention,  reser- 
vation to,  160;  convention  for  pa- 
cific settlement  of  international  dis- 
putes, 195;  convention  regarding 
opening  of  hostilities,  312;  court  of 
arbitration,  222 

Haiti,  landing  of  American  forces  in, 
277;  recognition  of,  121n;  treaty 
of  1915  with,  176n,  287 

Haiti  and  Santo  Domingo,  quasi-pro- 
teetorates  in,  11 

Hanover,  abrogation  of  treaty  with, 
241n 

Hawaiian  commission  of  1898,  65 

Hawaiian  Islands,  annexation  of,  11, 
334;  special  commissioner  to,  69; 
termination  of  treaties  with,  249 

Hawaiian  reciprocity  convention  of 
1875,  209 

Hay-Bunau-Varilla  treaty  of  1903 
with  Panama,  214 

Hay-Pauncef  ote  treaty,  158n,  213,  223, 
237;  and  Panama  canal  tolls,  217 

Honduras,  landing  of  forces  in,  275 

Horse-shoe  Reef,  acquisition  of,  10, 
179 

Hospital  ships,  exemption  of,  from 
port  dues,  208 

Hostilities,  cessation  of,  319ff; 
against  France  in  1798,  296 ;  Hague 
convention  concerning  opening  of, 
288 

House  of  Representatives,  and  the 
Mexican  Resolution  of  1864,  13 ; 
and  instructions  to  diplomatic  of- 
ficers, 89,  9P;  and  the  enforcement 
of  tr-eaties,  201fif;  right  of,  to  de- 
mand information  from  the  Presi- 
dent, 302ff ;  and  treaty  making,  132, 
144,  147,  149,  151 

Huerta,  redress  for  insults  of  Gen., 
278-9 

Hungary,  proposed  recognition  of,  120, 
125 


350 


INDEX 


Immigration  laws,  enforcement  of  by 

consuls,  109 
Indemnity  funds  from  foreign  govern- 
ments, 45 
Indian  treaties,  termination  of,  244f 
Information,     congressional     requests 

for,  17flf 
Instructions  to  diplomatic  representa- 
tives, 85ff 
Insurgency   in   Cuba,    recognition    of, 

116n 
International  Communication,  8f,  2 Iff 
International    conferences,    participa- 
tion of  U.  S.  in,  79fe 
International    law,    administered    by 
U.  S.  courts,  274;  and  the  state  de- 
partment,  46,   47;    creation   of   of- 
fices  by,   53;    and   formal    declara- 
tions of  war,  312;  as  source  of  dip- 
lomatic and  consular  duties,  85,  107 ; 
and  termination  of  war,  325 
International  police  power,  293n 
International  postal  treaty  of  Berne, 

180 
International  Telegraphic  Conference 

of  1920,  82 
Internment  of  belligerent  troops,  193, 

195 
Interpretation  of  treaties,  213ff 
Intervention,  272;  in  Latin-America, 

292 
Italians,  lynching  of,  in  1891,  188n 
Japan,  agreements  of  1908  and  1917 
with,  178 ;  and  California  alien  land 
law,  35;  controversy  with  over  San 
Francisco    school   ordinance,    19 On; 
treaty  of  1894  with,  223 
Japanese,  The,  and  Magdalena  Bay, 

16 
Jay  Treaty  of  1794,  21,  77,  201 
Judicial  enforcement  of  treaties,  185ff 
Judicial    interpretation    of     treaties, 

218ff 
Jury,  Trial  by,  in  consular  courts,  112 
Korean  treaty  of  1882,  Senate  reser- 
vation to,  22  In 
Koszta,  case  of  Martin,  277 
Lansing-Ishii     agreement     of     1917, 

178 
Latan6,  J.  H.,  America  as  a  World 

Power,  126 
Latin-American  protectorates,  286 
Latin-America,  use  of  force  in,  274 
League  of  Nations,  74,  75,  84;  cove- 
nant of,  161,  221,  228ff,  263,  271, 
290,   314;    separation  of  treaty  of 
peace  from,  149n 


Legal  functions  of  State  department, 

46 
Liberia,  recognition  of,  121n 
Logan  Act  of  1799,  25n 
London,  Declaration  of,  19 2n 
Lusitania,  sinking  of  the,  264 
Magdalena  Bay  Eesolution,  16 
Maine,  battleship,  in  Havana  harbor, 
291;  destruction  of  battleship,  262, 
313 
Mandate  over  Armenia,  proposed,  lln 
Matthews,  landing  on  Amelia  Island 

by  Gen.  Geo,  276n 
Maximum    and    minimum   tariff    pro- 
vision, 47 
McLemore  Resolution,  the,  8,  265 
Merchant  marine  act  of  1920,  234 
Merchant  ships,  power  of  President  to 

arm,  297 
Merit  system  in  appointment  of  diplo- 
matic and  consular  officers,  61,  62, 
104ff 
Mexican  War,  termination  of,  324 
Mexico,  agreement  of  1882  with,  170; 
Columbus  raid  of  1916  from,  299h; 
declaration    of    war    against,    314; 
lanjjing  of  American  forces  at  Vera 
Cruz    in,    278-9;    Lincoln    and    the 
French   in,    121;    Policy    of    U,    S. 
toward,   14;    reciprocity   convention 
of  1883  with,  203n,  209n,  246;  rec- 
ognition of  de  facto  government  in, 
123n,  126;  Wilson's  policy  toward, 
258;    reprisals  against,    1914,   299; 
shipment  of  munitions  to,  269 ;  Trist 
mission  to,  68;   War  of  1846  with, 
305f;      watchful      waiting      policy 
toward,  8 
Migratory  biriis,  treaty  regarding,  197 
Modi  Vivendi,  171 

Monroe    Doctrine,    5;     Congressional 
Recognition  of,  6;  New  development 
of,  274;  positive  interpretation  of, 
292,  293n 
Monroe  Doctrine  and  the  Hague  con- 
vention, 160 
Monroe  Doctrine  and  Danish  West  In- 
dies, 166 
Mora  claim  against  Spain,  25n,  206 
Morocco,  consular  jurisdiction  in,  110 
Most-favored-nation    clause    in    reci- 
procity treaties,  216 
Nations,  League  of,  74,  75,  84 
Naval   armaments,   limitation   of,   on 

Great  Lakes,  170,  199,  214 
Neutral  rights  of  U.  S.,  infringement 
of,  264 


INDEX 


851 


Neutrality,    policy    of,    257ff,    263ff; 
policy  of  armed,  295ff;  President's 
proclamation  of,  265ff 
Neutrality  and  the  world  war,  270 
Neutrality  and  recognition,  269f 
Neutrality  laws  of  the  U.  S.,  268ff 
Neutrality     Proclamation     of     1793, 

Washington's,  5,  215 
Netherlands,  treaty  of  1782  with,  240 
New  York  Indians,  treaty  with,  159 
Nicaragua,     bombardment    of     Grey- 
town  in,  278 ;  landing  forces  in,  285 
Ogg,  F.  A.,  National  Progress,  174 
**Open  door"  policy  in  China,  22n, 

178 
Panama,    American    intervention    of 
1903  in,  293;  Canal  tolls  question, 
8,  213,  217;  Canal  Zone,  Roosevelt's 
acquisition    of,    12n;    Congress    of 
1826,  56-57,  79;   guarantee  of  neu- 
trality of   Isthmus  of,   283;    inde- 
pendence    of,     guaranteed,     198n; 
Recognition  of,  116,  126;  treaty  of 
1903  with,  214;  use  of  force  toward, 
275,  284 
Pan-American  Conference,  80 
Paraguay,  difficulty  with,  in  1858,  281 
Paris  Conference  of  1919,  83 
Passports,  issuance  of,  45 
Peace,  maintenance  of,  257ff;  resolu- 
tion of  Congress  declaring,  328ff; 
treaties,  Bryan,  199 
Philippines,   acquisition   of,   10;    citi- 
zenship of  inhabitants  of,  160 
Piatt  amendment  of  1901,  179,  286 
Popular  control  of  foreign  relations, 

35n 
Postmaster-General,  agreements  made 

by,  172 
Porto  Rico,  cession  of,  to  U.  S.,  171 
President,  appointment  of  diplomatic 
representatives  by,  55ff,  61 ;  The,  as 
mouthpiece  of  the  nation,  22f,  24; 
The,  and  the  reception  of  diplomatic 
envoys,  92;  and  executive  agree- 
ments, 169ff;  The,  and  the  Mexican 
war,  305f;  The,  and  peace,  257£f; 
The,  and  recognition,  116ff;  attitude 
of,  toward  war,  258ff;  power  of,  to 
appoint  consuls,  98;  power  of,  to 
arm  merchant  ships,  297;  power  of 
to  bring  on  war,  306ff ;  power  of,  as 
commander-in-chief,  317,  318;  power 
of,  to  instruct  diplomatic  officers, 
87;  power  of,  to  revoke  consular 
exequaturs,  95n;  The,  and  removal 
of    diplomatic    representatives,    94, 


95 ;  power  of,  to  recognize  war,  289, 
305;  power  of,  to  terminate  hostili- 
ties, 319ff;  specification  of  causes 
of  war  by,  3il;  The,  and  treaty- 
making,  132ff,  140flf,  150ff,  157flf, 
163ff;  use  of  force  by  the,  276flP  • 

President's,  executive  order  relating 
to  consular  service,  100,  104;  power 
of  appointment,  53;  power  ^  call 
international  conferences,  80-85 ; 
power  of  recognition,  123ff;  power 
over  termination  of  treaties,  232flf; 
proclamation  of  neutrality,  265ff; 
removal  power,  39 

Presidential,  appointment  without 
senatorial  confirmation,  66fif;  ap- 
pointment of  members  of  Congress 
to  diplomatic  positions,  63ff;  ap- 
proval of  declarations  of  war,  315ff ; 
certificates,  expenditures  on,  72; 
dictatorship,  339f;  Initiative,  4ff; 
proclamation,  termination  of  war 
by,  336ff ;  recess  appointments,  76ff ; 
renominations,  59-60 ;  special  agents 
in  diplomacy,  67ff 

Privateering  and  the  Declaration  of 
Paris,  298n 

Prize  Cases,  the,  283,  288-9,  290 

Prize  Court  convention  of  1907, 
191n 

Protection  of  inchoate  interests,  292 

Prussia,  treaty  of  1828  with,  185n; 
treaty  of  1852  with,  191n 

Public  opinion  and  foreign  relations, 
35n 

Public  opinion  and  Presidential  au- 
thority, 7 

Qualifications  of  diplomatic  officers, 
60ff 

Quarantine  laws,  enforcement  of  by 
consuls,  109 

Recall  of  diplomatic  officers,  93 

Reception  of  diplomatic  envoys,  92 

Recess  Appointments,  76ff 

Recognition,  power  of,  115ff;  Con- 
gress and,  14;  The  courts  and,  127f ; 
executive  control  over,  123ff;  in- 
fluence of  Congress  upon,  117ff 

Recognition  and  neutrality,  269f 

Reeves,  J.  S.,  American  Diplomacy 
under  Tyler  and  Polk,  lln,  306n 

Referendum  on  war,  35n 

Removal  power  of  President,  39 

Reprisals  against  Mexico  in  1914, 
299 

Reservations  and  amendments  to 
treaties,  154ff 


352 


INDEX 


Eeservations,  Senatorial  and  foreign 
policy,  16-17 

Eoot-Takahira  agreement  of  1908, 
178 

Eush-Bagot  agreement  of  1817,  170, 
194,  199,  214,  227,  252 

Eussia,  American  troops  sent  to,  317; 
purchase  of  Alaska  from,  205;  Spe- 
cial diplomatic  mission  to,  76n;  ter- 
mination of  treaty  of  1832  with, 
226,  252 

San  Francisco  school  ordinance  of 
1906,  34,  190n 

Santo  Domingo,  agreement  of  1905 
■with,  139n,  173f ;  attempted  annexa- 
tion of,  11;  military  occupation' of , 
287;  President  Grant  and,  292;  use 
of  force  toward,  275 

Secret  service  fund.  President's,  72 

Senate,  the,  and  formulation  of  for- 
eign policy,  16f ;  The,  and  instruc- 
tions to  diplomatic  officers,  89,  90; 
President's  visit  to,  140-142;  reser- 
vations interpreting  treaties,  221; 
reservation  to  covenant  of  League 
of  Nations,  228,  290 ;  reservation  to 
Corean  treaty,  72 

Senate  and  general  arbitration 
treaties,  175ff 

Senate  and  treaty-making,  132ff,  137ff, 
152ff,  154ff,  158ff,  161ff,  166 

Senatorial  confirmation  of  appoint- 
ments, 59 

Siam,  consular  jurisdiction  in,  110 

Siberia,  proposed  withdrawal  of  Amer- 
ican troops  from,  317 

Solicitor  for  the  department  of  state, 
47 

Southern  Indians,  treaty  with,  140 

Spain,  declaration  of  war  against, 
313;  Mora  claim  against,  25n;  peace 
protocol  of  1898  with,  171;  termina- 
tion of  treaties  with,  244 ;  treaty  of 
peace  with,  153,  159 ;  treaty  of  1902 
with,  223 

Spanish-American,  colonies.  Commis- 
sioners to,  68 ;  provinces,  recognition 
of,  117f,  125;  War,  cessation  of 
hostilities  in,  319;  War,  termina- 
tion of,  324 

Spanish  treaty  commissioners  of  1898, 
appointment  of,  65 

Spanish  Treaty  Claims  Commission, 
187 

State  Department  of,  38ff;  Depart- 
ment, bureaus  in  the,  45;  Depart- 
ment, divisions  of  the,  48f ;  depart- 


ment, legal  functions  of,  46;  de- 
partment, relations  of,  with  Con- 
gress, 50,  51;  Department,  Eeor- 
ganization  of,  47 

Secretary  of  State  and  Congress,  18, 
19,  23,  50-51 

State,  Secretary  of,  and  the  Presi- 
dent, 39-42;  Undersecretary  of,  44 

States,  agreements  by,  30-32 ;  The,  and 
aliens,  33-35;  The,  and  foreign  rela- 
tions, 28ff;  power  of  the,  to  use 
force,  288n;  The,  and  treaties,  35, 
36 

Sulu  Islands,  acquisition  of,  250 

Sussex  affair  of  1916,  the,  8,  264, 
310 

Switzerland,  reciprocity  treaty  of 
1850  with,  216;  termination  of 
treaty  of  1850  with,  225,  252 

Tariff,  agreements,  172f ;  law  of  1909, 
47;  laws  and  treaties,  206ff 

Termination,  of  diplomatic  missions, 
93ff;  of  treaties,  223ff;  of  war, 
319ff 

Territory,  acquisition  of,  10-12,  334-5 ; 
incorporation  of,  by  treaty,  210n 

Texas,  annexation  of,  11,  166,  334; 
recognition  of,  llSff,  125;  termina- 
tion of  treaties  with,  250 

Tolls,  payment  of  by  American  ships 
in  passing  Panama  Canal,  213,  217 

Treaties,  affecting  the  revenue  laws, 
206ff;  agreements  authorized  by, 
174ff;  Amendments  and  reserva- 
tions to,  154ff;  as  source  of  diplo- 
matic and  consular  duties,  85;  con- 
flict of,  with  acts  of  Congress, 
191ff;  Congressional  enforcement  of, 
196ff;  considered  in  open  executive 
sessions,  161f;  enforcement  of, 
184ff;  enforcement  of,  and  the 
House  of  Eeprescntatives,  201ff; 
executive  enforcement  of,  193ff;  in 
the  Senate,  152ff  •  interpretation  of, 
213ff;  Termination  of,  223ff;  ter- 
mination of,  and  the  courts,  241ff; 
termination  of  through  legislative 
implication,  248 

Treaty  Clause,  The,  in  the  Constitu- 
tional Convention,  130ff 

Treaty-Making  Power,  130ff;  and  the 
states,  35,  36;  and  incorporation  of 
ceded  territory,  210n;  practical 
operation  of,  149  ff 

Treaty-Making,  Fundamental  Condi- 
tions of,  143ff ;  stages  in  the  process 
of,  134 


INDEX 


353 


Treaty  rights  of  aliens,  34 

Treaty,  of  1853  with  France,  36;  of 
1783  with  Great  Britain,  36;  of 
Ghent,  1814,  64;  of  Guadeloupe  Hi- 
dalgo, 69;  The  Jay,  21;  of  Ver- 
sailles, 9;  of  Versailles,  senatorial 
reservation  to,  74,  75,  84;  Webster- 
Ashburton,  of  1842,  30 

Trading  with  the  enemy  act,  323 

Trent  affair  of  1861,  258 

Tripoli,  recognition  of  war  against, 
315 

Trist's  mission  to  Mexico,  68 

Turkey,  consular  jurisdiction  of,  110, 
111;  proposed  declaration  of  war 
against,  259 

Turkish  waters,  American  warship  in, 
273 

Unconstitutional  treaty,  no  case  of, 
19  In 

Undersecretary  of  state,  office  of, 
44 

Venezuela,  claims  of  American  citi- 
zens against,  195;  controversy  with 
Great  Britain  regarding,  260,  261 

Vera  Cruz,  incident  of  1914,  278-9, 
299 

Versailles,  Treaty  of,  9,  137,  152ff, 
161,  221,  323,  331;  Treaty  of,  sena- 
torial reservation  to,  74,  75,  84 

Vice-consuls,  102 

** Virginia  dynasty,''  The,  42 

War,  against  Austria-Hungary,  dec- 
laration of,  311;  against  Germany, 
declaration  of,  311;  against  Sj>ain, 
declaration  of,  313;  agreement  not 
to  declare,  263;  against  Algiers, 
recognition  of ^  315 ;  against  Tripoli, 


recognition  of,  315;  the  beginning 
of,  294ff;  formal  declaration  "of, 
312;  forcible  measures  short  of, 
272ff;  of  1812,  beginning  of,  308f ; 
of  1812,  termination  of,  324;  with 
Mexico,  305f ;  with  Mexico,  declara- 
tion of,  314;  with  Mexico,  term'ina- 
tion  of,  324;  of  1914,  neutrality  and 
the,  264;  neutrality  of  U.  S.  during 
Franco-Prussian  and  Russo-Japan- 
ese, 263;  partial,  against  France  in 
1798,  296,  301;  popular  referendum 
on,  35n;  President's  attitude 
toward,  258ff;  Presidential  approval 
of  declarations  of,  315ff;  specifica- 
tion of  causes  of,  310ff ;  states  have 
no  power  to  declare,  288n;  Ter- 
mination of,  319ff;  termination  of, 
by  Presidential  proclamation,  336ff ; 
termination  of  the  Civil,  321,  332, 
337 

War  power,  attempt  of  treaty  power 
to  limit  the,  313-4 

War-time  prohibition  act,  322 

Washington  conventions  of  1907,  285 

*' Watchful  waiting"  policy  toward 
Mexico,  8 

Water  Witch,  attack  upon  the,  281-2 

Webster-Ashburton  treaty  of  1842,  30, 
143,  198n,  224,  239,  253 

Willoughby,  W.  W.,  Constitutional 
Law  of  the  U.  S.,  29n,  30n,  54n, 
210n,  254 

World  War,  neutrality  and  the,  270 

"XYZ"  affair,  89,  300,  302 

Zimmermann  note,  the,  310 

ZoUverein,  proposed  reciprocity  con- 
vention with  German,  208 


14  DAY  USE  ^v 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recall. 


6Nov58rv; 

REcn  t.r> 

OCT  23  1958 

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1 

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1 
1 

1 

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1 

General  Library 
LD  21A-50m-8,'57                                University  of  California 
(C8481sl0)476B                                               Berkeley 

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